« ForrigeFortsett »
dence in respect of the value of the vessel
As to knowledge or notice of the obstruction by appellants, the evidence tended to show that they had been for some years in the use of the wharf and of this particular berth; that they had under lease perhaps two and a half miles of river front, containing stone quarries, some of which they were working; that their business was large, and that during the year 1893, before the accident, they had loaded from fifteen to twenty vessels at the same place; that the capacity of the crusher for loading vessels through the chute was from one hundred and fifty to two hundred tons a day; that they employed from one hundred and fifty to three hundred men, and at times many more, and had bins into which they ran crushed stone to be carried off in various ways. It further appeared that in December, 1892, the twomasted schooner *Baird, carrying five hundred tons, and when loaded drawing fourteen feet, grounded in the same berth, manifestly on a rock, and that that fact and the character of her injuries were known to appellants. There was much other evidence bearing on this point of knowledge or notice, which fully sustained the court of appeals in its conclusion that appellants knew of the existence of the rock, and its dangerous nature; or, if not, that absence of investigation amounted, under the circumstances, to such negligence as to impute notice.
But the stress of the argument is that the master was guilty of negligence which contributed to the injury, and chiefly in not as
that the foreman "said the vessel was laying
At all events, we are unable to decide that the court of appeals was not justified in holding on the evidence that appellants were liable for negligence and the want of reasonable care, and that the master was free from contributory negligence; and the decree must, therefore, be affirmed.
WILLIAM YERKE, Appt.,
(See S. C. Reporter's ed. 439-442.)
Claim for Indian depredations-what claims
Under the first clause of the act of March 3, 1891, providing for the adjudication and payment of claims for Indian depredations, one who was not a citizen at the time of the depredation cannot make a claim, although he had previously declared his intention to become a citizen and was afterwards admitted to citizenship.
certaining the condition of the bottom of the UNITED STATES and The Apache Indians.
Under the second clause of the said act, claim for Indian depredations which has only been filed with the Commissioner of Indian affairs is not within the jurisdiction of the court of claims, as a claim which has been "examined and allowed by the Interior De partment."
dropped over from a lighter that he did not know of; that the captain did make soundings and found sufficient water as the vessel then lay; that one of the appellants told the foreman "to tell the captain of the Tobin that he had better sound around the vessel and make sure that it was laying all right;"
Submitted February 20, 1899. Decided
APPEAL from a judgment of the Court of
"The facts are stated in the opinion.
Messrs. T. H. N. McPherson and C. M. name and address of the claimants,
Messrs. John G. Thompson, Assistant Attorney General, and Lincoln B. Smith for appellees.
*Mr. Justice McKenna delivered the opinion of the court:
1. In Johnson v. United States, 160 U. S. 546 [40: 529], it was held that citizenship at the time of the depredation was an essential condition of the jurisdiction of the court of claims of demands under the first clause.
2. Speaking of the second clause, it was said: "By that, jurisdiction is extended to cases which have been examined and allowed by the Interior Department, and also to such cases as were authorized to be examined under the act of Congress' of March 3, 1885, and subsequent acts."
The appellant (petitioner in the court below) claimed $3,400.00 under the act approved March 3, 1891, entitled "An Act to Provide for the Adjudication and Payment of Claims Arising from Indian Depredations." He alleged that he was a native of Prussia, and came to the United States in 1828, and declared his intention to become a citizen of the United States on the 8th of January, 1842, and was recognized as a voter The appellant's case was not of the former of Cochise county, Arizona, from 1884 to kind. His claim had not "been examined 1886; that he made application for and was and allowed by the Interior Department." It adjudged and declared a citizen of the United had only been filed with the Commissioner of States December 16, 1896; that in March, Indian Affairs. Was it hence a case of the 1872, he was the owner of certain property second kind? To have been that it must (which was described) of the value of $3,400.- have been one then "pending but not yet ex00, in Arizona territory, "which was taken, amined;" and must have been on behalf of a used, and destroyed by the Apache Mohave citizen of the United States. It was on file, Indians," who were in amity with the United and hence may be said to have been "pendStates "when the depredation was commit- ing," but it was not on behalf of a citizen of ted." He further alleged "that he presented the United States. Appellant was not then his claim to the honorable Commissioner of a citizen. He did not become such until DeIndian Affairs March 8, 1882, but that no ac- cember 16, 1896. tion was had thereon; that said claim has not been paid or any part thereof, nor has any of the property been returned either by the said Indians or the United States."
The United States filed a general traverse. The court dismissed the petition for want of jurisdiction. This ruling is assigned as
The act of March 3, 1891, gives jurisdiction to the court of claims to "inquire into and finally adjudicate, in the manner provided in this act, all claims of the following classes, namely:"
First. "All claims for property of citizens of the United States taken or destroyed by Indians belonging to any band, tribe, or nation in amity with the United States. . . . Second. Su jurisdiction shall also extend to all cases which have been examined and allowed by the Interior Department, and also to such cases as were authorized to be examined under the act approved March 3, 1885, and under subsequent acts. (23 Stat. at L. 376.)
The "subsequent acts" do not affect the question; and that part of the act of March 3, which it is necessary to quote, provides
"For the investigation of certain Indian depredation claims, ten thousand dollars; and in expending said sum the Secretary of the Interior shall cause a complete list of all claims heretofore filed in the interior Department, and which have been approved in whole or in part and now remain unpaid, and also all such claims as are pending, but not yet examined on behalf of citizens of the United States on account of depredations committed, chargeable against any tribe of Indians by reason of any treaty between such tribe and the United States, including the
to be made and presented to Congress at its next regular session.
Is the demand of appellant within any of these clauses?
But appellant urges that the act of 1891 applies to claimants who were inhabitants at the time of the depredations, and that their naturalization afterwards should be held to relate to that time. This view is attempted to be supported by analogy to sections 2289 and 2319 of the Revised Statutes, which respectively give to citizens and to those who have declared their intention to become such the right to enter agricultural or mineral lands, and the practice of the Land Department in such cases to give retroactive effect to a declaration of intention. The answer is ready, and may be brief. The act of 1891 is not ambiguous. Its clearness does not need and may not be construed by analogies from other statutes or from the practice under other statutes. The rule is elemental that language which is clear needs no construction. Lake County v. Rollins, 130 U. S. 662 [32: 1060]. Under both of the clauses of the act of 1891, the claims of which jurisdiction was given were strictly ship at the time of the depredations; maybe identified; under the first clause, by citizenalso under the act of 1885, which provides the cases of the second clause. But whether, as was said in Johnson v. United States, the different phraseology of the act of March 3, 1885, would include claims in favor of those not citizens at the time of the depredations by the Indians, it was decided that they must be claims then "pending"-that is, pending at the time of the act on behalf of citizens. And as it was such cases which "were authorized to be examined" under the act of 1885, it was to such cases that the jurisdiction of the court of claims was extended by the second clause of the act of 1891. Judgment affirmed.
(443]REMINGTON PAPER COMPANY, Plff. in | ington Paper Company, through their attor
To which motion the Remington Paper
"The plaintiff in this case, for the purpose
"That said mover as a pretended receiver cannot interfere in the progress of this suit in the informal and summary manner attempted by him in his said rule, nor has he any right to be heard to demand by the judg ment of this court anything of this court without coming into court by regular process and proceedings and in the mode allowed by law, wherein the plaintiff will be entitled to a trial of questions of law and fact in the mode and manner guaranteed by the Consti
JOHN W. WATSON, Frank H. Pope, and the
(See S. C. Reporter's ed. 443–452.)
A judgment by a state court sustaining an ex
error from this court.
Argued January 17, 18, 1899. Decided
IN ERROR to the Supreme Court of the
State of a judgment of that court affirming the judgment of the Civil District Court for the Parish of Orleans, Louisiana, in favor of John W. Watson et al., dismissing the suit of the Remington Paper Company for damages, and adjudging that its demand be rejected, and the appointment of John W. Watson as receiver be maintained, etc. Writ of error dismissed. See same case below, 49 La. Ann. 1296. The facts are stated in the opinion. Messrs. E. T. Merrick and Albert Voorhies for plaintiff in error.
Mr. Alexander Porter Morse for defendants in error.  *Mr. Justice McKenna delivered the opinion of the court:
It is objected that the record presents no Federal question.
In an action brought in the civil district court for the parish of Orleans, state of Louisiana, John Watson, one of the defendants in error, was appointed, on the 17th day of May, 1893, receiver of the property and assets of the Louisiana Printing & Publishing Company, a corporation created under the laws of the state of Louisiana. As such receiver he took possession of such assets and property. There was no appeal taken from the order of appointment.
The plaintiff in error, a corporation created under the laws of New York, and having its residence in that state, brought an action in the United States circuit court for the district of Louisiana against the Louisiana Printing & Publishing Company, to recover $3,863.55, for paper furnished the company, and sued out writs of sequestration and attachment, by* authority of which, on the 29th day of May, 1893, the United States marshal seized certain property of the company and took the same from the possession of Watson. On May 30, 1893, Watson as receiver filed a motion in said circuit court to quash the attachment and sequestration sued out, "and said rule on motion concluded with an order which the mover in the rule desired the court to adopt;" and thereupon the judge of the court made the following order:
"Let this rule be filed, and let the Rem
tution and prescribed by law.
"Wherefore this plaintiff says that this
The plaintiff prayed the court to decide the exception to said rule before proceeding further or hearing any testimony on the rule taken.
The court, however, decided to hear the testimony on the allegations of said rule, and after hearing the same, on the 6th day of June, 1893, made the following order:
"This cause having been heard and submitted upon a rule taken by John W. Watson, appointed a receiver of the defendant by the civil district court for the parish of Orleans, to set aside the writs of attachment and sequestration issued in this cause, and upon the exception thereto filed by the plaintiff, and the same having been considered by the court, it is now ordered, for the reasons assigned in the written opinion on file, that the marshal restore the property seized in this cause under the writs of attachment and sequestration to John W. Watson, receiver, unless, within five days, the plaintiff applies for and ultimately receives authority from the civil district court which appointed Watson or from the appellate court to hold same under said writs."
The opinion of the court referred to in the order recites that Watson had been "appointed receiver upon a petition of a creditor and in the intervention of the attorney general; which original and intervening petitions averred that all the officers of the defendant corporation had resigned and that in
fact it was a vacant corporation." It was further said:
"I do not think this court can deal at all with the alleged irregularity in the appointment of the receiver, such as the alleged want of an execution, etc., preceding the appointment. It appearing to this court that a court of concurrent jurisdiction has appointed a receiver who was in actual possession, this court has no right to attempt to dispossess him. All the matter as to irregularity of the appointment must be dealt with by the court that appointed. I understand the doctrine of the comity of courts to be this-that where a court has jurisdiction of a cause and property and through its proper officer is in possession, it is the auty of all other courts to refrain altogether from the attempt to take that property into possession except by permission of the court in possession. It is not a question of the validity of process, but a question of public order, and the rule of comity is based upon the duty of courts to abstain from anything that might lead to violence. There having been a receiver appointed by a court of competent jurisdiction and he being in possession of the property attempted to be seized by the marshal, and which was in fact seized, I think the duty of this court is to restore the property practically to the situation in which it was when the property was interfered with by the marshal."
The bill of exceptions signed by the circuit judge shows that Watson was in possession of the property, engaged in making an inventory of it when it was seized by the mar. shal, and had taken the oath of office but had filed no bond.
ing him was null and void because obtained "upon the collusive petition of Frank H. Pope without citation to anyone, without oath or affidavit or any proof and without contest." It was further alleged that the socalled intervention of the attorney general did not cure the nullity of the proceedings of Pope and Watson, and that the state was without authority to intrude itself in that manner into the controversies of private persons. There was a prayer for citation and that the order appointing Watson receiver be declared as against petitioner null and void and of no effect, and the same be ineffectual as a bar to said attachment or sequestration or other proceedings on the part of the petitioner in the circuit court of the United States, and that said Watson and Pope be condemned, as in solido or otherwise, to pay petitioner the sum of $3,863.55 damages caused it by the construction of its proceedings in the circuit court, and for general relief.
On the 9th day of June, 1893, three days after the order of the circuit court, the Remington Company filed in the civil district court for the parish of Orleans a petition and action of nullity and for damages under the laws of the state against Watson, receiver, Pope, petitioning creditor, and the Louisiana Printing & Publishing Company.
The petition alleged the indebtedness of the latter company to petitioner, the action by the latter in the United States circuit court, the attachment of property, the motion of Watson as hereinbefore stated, and the ruling and order of the court thereon; that the effect thereof will be to prevent the execution of any judgment rendered, and that "Watson was without right to stand in the way of a just debt because he had given no bond at the date of the seizure of property under the attachment nor complied with the order of the court, nor had proceedings been had to perfect his appointment or to give him the right to control the property or to prevent any suit from being brought or any court from subjecting the property of said defendant by due course of law to the payment of its debts, and the conduct of the said Watson, Frank H. Pope, and those confederating with them in attempting to *screen the property from payment of debts was collusive and a constructive fraud upon petitioner and a violation of its rights under the laws and Constitution of the United States of America," that the order appoint
The petition was subsequently amended, amplifying somewhat the charges of illegality in Watson's appointment, and alleging with more detail his action in the circuit court, and averring "that said ex parte order of this court, dated the 17th day of May, 1893, purporting to appoint John W. Watson receiver of the Louisiana Printing & Publishing Company, Limited, was obtained in violation of the Fifth and Fourteenth Amendments to the Constitution of the United States, in this, that said decree was obtained without due process of law, it being ex parte and without affidavits, bond, or proof, as more at large alleged in the orig inal petition, and the said unconstitutional and void order and decree is set up and alleged by the defendants as a bar and a defense to prevent your petitioner from recovering and having its said just and valid debt from its said debtor, the said Louisiana Printing & Publishing Company, Limited, and thus depriving petitioner of its claim duly secured by due and legal process of law on the property of its said debtor, and seized under said *writs from said circuit court of the Unit- ed States, and said defendants seek through said void ex parte order of 17th day of May, 1893, to effect the transfer and of the possession and property of said Louisiana Printing & Publishing Company under the seizure of petitioner under its writs to said John W. Watson, thereby screening the same from ordinary and legal pursuits of creditors in the modes pointed out by law, in violation of the Fifth and said Fourteenth Amendments of the Constitution of the Unit ed States."
To the petition Watson answered, denying all and singular its allegations except his appointment as receiver, and "assuming the attitude of plaintiff in reconvention," alleged that the Remington Paper Company was a nonresident corporation, and that by its "unlawful and unwarranted seizure of the property of said Louisiana Printing & Publishing Company, Limited, which seizure has been released, said Remington Paper Company has damaged the creditors of said Louisiana Printing & Publishing Company, Limited,
for whose benefit ut universi this reconventional demand is now prosecuted."
"For surely the plaintiff cannot be heard to say that Watson and Pope have perpe
The damages were itemized and alleged to trated upon it damages resulting from a loss have amounted to $3,847.15. and injury it has occasioned through its own fault.
The answer concluded as follows: "Wherefore said John W. Watson prays that said plaintiff's petition be dismissed; that he be quieted in his position as receiver; that his appointment be ratified and confirmed as prayed for by said Louisiana Printing & Publishing Company and by a large majority of its stockholders and its board of directors, and that, as the representative of the creditors of said company, he have judgment on his reconventional demand against plaintiff in the sum of $3,847.15 and
all costs of this suit."
Upon the hearing judgment was rendered as follows:
"1st. In favor of John W. Watson and Frank H. Pope, rejecting and dismissing the suit of the Remington Paper Company for damages.
"2d. That the demand of the Remington Paper Company against John W. Watson, Frank H. Pope, and the Louisiana Printing & Publishing Company, represented by John 49] W. *Watson, receiver, of the nullity of the order appointing said Watson receiver, etc., be also rejected and dismissed, and that said appointment and order be maintained.
"3d. That the reconventional demand for money claimed by Watson as receiver herein be dismissed as of nonsuit, and that the Remington Paper Company be condemned to pay all costs of this suit."
The supreme court affirmed the judgment (49 La. Ann. 1296), and the case was brought here.
The supreme court, after reciting the proceedings taken by the respective parties and stating their contentions, said that the ord showed that the Remington Company did not comply with the order of the United States circuit court, "but, on the contrary, this action of nullity and claim for damages was resorted to instead of such an application," and it was held that the action depended necessarily upon a claim for damages, and that the company had no such claim. It was further said:
"The plaintiff's recourse against property stricken by a vendor's *lien was just as effica- cious against it in the hands of the receiver as it was in that of the marshal, and had it made proper and seasonable application to the judge a quo, possibly he might have permitted the marshal to retain in his possession the property seized under the writ of attachment in the circuit court. However vain and nugatory such an effort may have prov en, it was none the less its duty to have made
the effort at least.
"In the first place, addressing ourselves to the question of damages, we are of opinion that the plaintiff was plainly at fault in not employing the proper means to protect its own rights; (1) first, because it used no effort to avail itself of the permission granted by the circuit court whereby the seizure might have been retained on the property; (2) second, because it took no means or proceedings looking to the protection and preservation of its alleged vendors' lien upon the property after it had passed into the custody and control of the receiver, either by injunction against a sale by the receiver or a third opposition claiming the proceeds of sale, der a separate appraisement and sale.
"In our view, such measures could have been easily resorted to on the part of the plaintiff, without prejudice to this or its circuit court suit, and, failing in this, an insurmountable obstacle has been raised to its claim for damages.
"In our opinion, this is not π case in which we are called upon to examine and scrutinize the legality of the appointment of a receiver, for the reason that the complaining creditor has not suffered any injury thereby and is itself seeking a preference.
"We think the ends of justice would be best subserved by preserving and maintaining the status quo."
The assignments of error are somewhat involved in statement, but they are based on the ground that the order appointing Wat son receiver was null and void because the rec-ownership of property in the Louisiana Printing & Publishing Company, the debtor of plaintiff, "could not be devested to the prejudice of creditors on an arbitrary order without due process of law," and the use of such or der to obtain the ruling of the United States circuit court, which directed the United States marshal to restore to him the property attached, deprived the plaintiff in error of a right without due process of law, and that therefore the judgment of the lower court was erroneous.
The appointment of a receiver to take possession of the property of an insolvent corporation upon the petition of a creditor is certainly "due process." This, of course, is not denied, but the invalidity of the order of appointment is asserted because it was made ex parte, and because Watson had not fully qualified. It is hence argued that the appointment was a nullity-constituted "no legal obstacle" to the proceedings in the United States circuit court.
This view was not entertained by that un-court, but, on motion of Watson, the court ordered the property which had been attached restored to him and remitted the plaintiff (plaintiff in error here) to the state court. Its order was "that the mar shal restore the property seized in this court under the writs of attachment and sequestration to John W. Watson, receiver, unless