(2 Wash. T. 70)


July 22, 1881.

When a bill of exceptions does not contain the entire charge given to the jury upon the trial, or fails to show that the instructions complained of upon a particular point were all the instructions given the jury on that subject, sufficient does not appear to warrant this court in reviewing the action of the trial court. The fact that enough appears by the transcript to enable the court to pass upon the question of the correctness of a particular instruction is not all that is required, as it may fairly be presumed other parts of the charge so modified the instruction complained of as to free it from objection.

Error to First judicial district, holding terms at Walla Walla.

C. A. Dolph, for plaintiffs in error.

Theo. Burke, for defendant in error.

HOYT, J. Defendant in error moves the court to dismiss this action upon the ground that the plaintiffs in error have not brought here a sufficient transcript of the record in the court below. Plaintiffs in error admit that the transcript is insufficient to warrant this court in passing upon any of the rulings of the court below which are assigned here as error, excepting the one in relation to certain instructions given to the jury upon the trial of the cause, but insist that enough appears in the transcript to enable this court to pass upon that question. But as the bill of exceptions, signed by the judge, does not contain all of the instructions given upon such trial, and fails to show, by any proper certificate therein, that those portions of the instructions included in said bill of exceptions were all that were given upon the points covered thereby, we are of the opinion that we cannot assume such to be the fact, and that, therefore, it is not competent for us to pass upon the question above stated without further information than we can gather from said transcript as it now stands; and no motion having been interposed for leave to file an amended transcript, the motion to dismiss must be granted; and it is so ordered.

(2 Wash. T. 76)

WADDELL and another v. THE DAISY.

July 22, 1881.

When an appeal is taken and allowed from a definitive sentence in admiralty, at the time of its entry, and time is allowed in which to perfect the appeal, no written petition for an appeal or for apostles is necessary under the admiralty rules, nor are letters dismissory of the cause.

The practice of the courts of this country and of this court has made the filing of the appellatory libel, known to the civil law, unnecessary. An appeal having been taken and allowed at the entry of sentence, and perfected within the time allowed by the court, meets all the requirements of the civil law in those respects.

No monition 'ssuing out of this court to the trial court to transmit the cause to this court is required; and more especially is that the case when no unwillingness on the part of the judge of the lower court is shown.

As to whether filing of brief, without saving the right to raise the last question, is a waiver of it, not passed upon.

Where it appears that a person has a contract for the furnishing of the machinery for a vessel, and the materials of a third person, who had full knowledge, were used in the construction of such machinery, and it not appearing that the owner of the steam-vessel or his agents authorized the using of said material, the steamer is not liable for the same.

In determining whether a contract for the furnishing of materials in the construction of a vessel is a maritime contract, the test is not the location of the hull, as to being on the ways or afloat, but rather was she so far finished at the time that any thing further done upon or about her would in its nature be maritime.

The libel averring that the material was used in the building of the vessel, demonstrates that the contract was non-maritime, and that this court is without jurisdiction in rem.

Doubt expressed as to the power of our legislature to confer jurisdiction upon the courts to entertain an in rem proceeding in admiralty for material furnished in the building of a vessel. It is a settled rule in the construction of lien laws that the legislature will not be presumed to have provided a lien for the claims of persons not in priority with the owner of the property against which the lien is sought, unless such provision is made in unequivocal language, and such intention does not appear in the language of our lien law, but a fair construction of the language employed shows the legislative intention was to the contrary.

Section $23, Rev. St., and those following it, determine the tariff of fees for clerks in our territorial courts in admiralty suits.

Appeal from Third judicial district, holding terms at Seattle.

Burke & Raisin and C. H. Hanford, for appellants and libelants. Struve, Haines & Leary, for respondent and appellee.


HOYT, J. The attorneys for the respondent, having reserved the right so to do in their brief, now move the court to dismiss the appeal herein for the reasons stated in their brief, as follows: (1) No petition for appeal, no petition for apostles, and no letters dismissory, signed by the judge of the court below, have been filed, and none are called for by the notice of appeal; (2) no appellatory libel has been filed; (3) the appeal was not taken or perfected at the time, or at the same term the decree was entered, or at any regular term of the

court entering said decree. They also now urge the further point that no monition issued out of this court to the court below to transmit the proceedings to this court.

The transcript in the case shows that the appeal was from a definitive sentence, and that it was taken and allowed at the time of the entry of said sentence, and that the court then allowed time in which to perfect the appeal, and this was, in our opinion, such a compliance with the rules governing appeals in admiralty as to fully meet the objections thereto raised by the first point above quoted; for we are of the opinion that no written petition for an appeal from a definitive sentence or for apostles is required, and that, in view of the fact (as will be hereinafter stated) that no action of the appellatory court is required to perfect the appeal, the action of the court below, in allowing the appeal and in granting time in which to perfect the same, was sufficient letters dismissory of the cause.

As to the second point we are of the opinion that the rules of the civil law have been so far modified in this country and in this court, by a uniform current of practice, as to make the filing of an appellatory libel in this court unnecessary.

The appeal having been taken, and allowed at the time of sentence, and having been perfected within the time fixed by the court, it was sufficient in our opinion, under the rules as interpreted by this court in the case of The Zephyr v. Brown, ante, 186, to meet the objection raised by the third point above stated.

It only remains to discuss the point now raised for the first time (the same not having been reserved in the briefs on file) as to the necessity of a monition issuing out of this court to the court below; and, specially reserving the point as to whether said objection was taken in time, we would say that we are of the opinion that no monition was necessary, as there has been a uniform practice in this court to take jurisdiction of cases in admiralty sent up on appeal, without the intervention of such monition; and such has been the practice of the supreme court of the United States as to appeals from this court. The appeal having been perfected by the filing of a bond properly approved, and the court having, in lieu of further apostles, directed the entire record to be sent up, was in our opinion sufficient to divest said court of the case, and upon the filing of said record here this court acquired jurisdiction therein. The case is not presented of a refusal on the part of the court below to direct the record to be sent up, and we do not, therefore, now assume to decide as to what would be the correct practice in such a contingency.

It follows from what we have said that the motion must be denied; and it is so ordered.


HOYT, J. This was an action in admiralty, brought by the libelants against the respondent, to enforce a lien for certain materials

furnished by them, and used in the putting in of the boilers and engines of the said steamer Daisy in the process of her construction as such steamer. To the libel exhibited therein the respondent and claimants filed their exception and answer, and testimony was taken to show the circumstances under which such materials were furnished at the request of the owners of said steamer or their agents, or at the request of one J. C. Fox, who had a contract for the furnishing and putting in of the machinery, in the construction of which the materials furnished by libelants were used. The conclusion to which we have come, as to the law of this case, makes it unnecessary for us to decide this question, so far as the decision of this case is concerned; but, in view of the fact that the discussion of an important point of law, raised in the case, was made dependent upon the above-stated question of fact, we have thought it best to decide it, and are of the opinion that, it appearing clearly that said Fox had a contract for the furnishing of the machinery in the construction of which the materials of libelants were used, and that said libelants had notice thereof, and it not appearing that they were ever authorized by the owners of said steamer, or their agents, to furnish said materials, that it follows, in contemplation of law, that such materials were furnished at the request of said contractor, Fox, and the fact that they were, without authority, charged to the steamer, instead of to Fox, could not change the legal liabilities of the parties.

Upon the facts above stated two questions of law have been urged by the counsel for claimants as conclusive against the rights of libelants to maintain their action: (1) That the court had no jurisdiction of the subject-matter of the suit; and (2) that the materials, having been furnished to the contractor, and by him used in the performance of his contract with the owners of the steamer, the libelants, as to the said steamer and her owners, stand in the relation of subcontractors, and therefore have no lien upon said steamer, under the provisions of the laws of this territory relating thereto.

The first point was not argued in the court below, but, as it goes to the jurisdiction of the court over the subject-matter of the action, it could not be waived, and if well taken must be fatal to libelants' claim, whenever brought to the attention of the court. We therefore proceed to consider it. Was the contract for putting in said machinery a maritime one, within the meaning of the law giving courts of admiralty the right to enforce such contracts by proceedings in rem? The answer to this question must, in our opinion, turn upon the fact as to whether the putting in of said machinery was a part of the construction of said steamer, as a completed vessel, or was she a completed vessel without the machinery in question; for if the materials were used in the construction of the steamer, then, under the wellsettled rule as declared by the supreme court of the United States, the -contract for the furnishing thereof was not a maritime one, and an action in admiralty in rem would not lie to enforce the lien thereof.

People's Ferry Co. v. Burs, 20 How. 399; Roach v. Chapman, 22 How. 129.

Was the steamer Daisy a completed vessel at the time the said machinery was put into her? We think not, for at the time the contract with Fox was made, under which said machinery was furnished, she was, if in existence at all, in existence only as an incomplete hull on the ways, and therefore said contract was, within the most restricted construction of the case of Roach v. Chapman, supra, a contract for the construction of the vessel, and therefore not maritime. We, however, place but little stress upon the fact that, at the time of the making of the contract, the vessel had not yet been launched, as we do not think that the learned judge who pronounced the opinion of the court in the case of the People's Ferry Co. v. Burs, supra, could have intended, by stating as one of the reasons why the contract in that case was not maritime, that "it was a contract made on land, to be performed on land," thereby to make that fact the leading one in deciding that the contract in said case was non-maritime. For if the location of the hull, whether on land or water, was to be decisive as to the character of the contract, it would follow that a contract made one day would be non-maritime, which, if made the next day, in exactly the same terms, and applying to the same vessel, would be maritime. A contract not maritime would, without any change in its terms or conditions, be changed to a maritime one by the moving of the hull, upon which such contract was to take effect, the distance of a few hundred feet. Work which, if done one day, would entitle to a lien in admiralty, would, if done a day earlier, fail to create such lien. Such a construction does not seem to us reasonable, and we do not think that the opinion, taken as a whole, warrants the conclusion that the court so held. In our opinion the material question is this: Were the materials used in the construction of a part of the vessel necessary to her practicable use as a vessel for the purposes for which she was intended? Was she so far the finished creature of her designer as to be reasonably adapted to the use for which she was intended? If she was so far finished, then anything further done upon her would be maritime in its nature, but everything done before such a degree of completion had been reached would be non-maritime in its nature.

Applying these rules to the case at bar, and it becomes evident that it is immaterial as to whether we consider the contract as having been made at the date of the contract with Fox, or at the time. when the materials actually went into the steamer, as the machinery, in the construction of which said materials were used, was clearly necessary for the practicable use of the vessel for the purposes for which she was intended and adapted. Besides, libelants have set out in their libel that said materials were used in the building, equipping, and furnishing of said steamer, without stating what part of said materials were used for each of said purposes, and therefore, for the

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