Steamboat Clarion v. Moran, 18 Ill. 501 (1857)

April 1857 · Illinois Supreme Court

18 Ill. 501

The Steamboat Clarion, Plaintiff in Error, v. Patrick A. Moran, Defendant in Error.

ERROR TO CARROLL.

In a proceeding by attachment against boats and vessels, a summons to the owner, or notice by publication is necessary.

In proceedings in rem., where there is not an appearance the judgment must not exceed the amount sworn to in the affidavit for the attachment, a remittitur of such excess after judgment, does not cure the error.

Moran filed his affidavit, stating that he had entered into an agreement with the agent of the steamboat Clarion to run as her master, at one hundred dollars per month, and that the boat was indebted to him for extra services, as pilot. The indebtedness sworn to was five hundred and fifty-four dollars. The boat and furniture were levied upon by the attachment issued, upon the affidavit. A default was entered against the boat, a writ of inquiry was awarded, and damages assessed at $1,000. There was a judgment on the verdict, and a special execution ordered. On the following day Moran entered a remittitur of the sum of $446.

Leland and Leland, for Plaintiffs in Error.

M. T. Johnson, for Defendant in Error.

Scates, C. J.

The act authorizing attachments against boats has not dispensed with a summons to the owner, or constructive notice by publication of notice, as in other cases of attachment. 1 Purple’s Stat. pp. 107-8, Sec. 3.

There is no service shown here, either by summons or publication, and there being no appearance, the whole proceeding is erroneous.

There is another error in the amount of the judgment. In proceedings of this kind, in rem., where there is no appearance, the judgment cannot exceed the debt sworn to in the affidavit for the attachment. Rowley v. Berrian, 12 Ill. R. 101-2; Henrie v. Sweasey, 5 Blackf. R. 274. Here the defendant recovered a much larger sum, and afterward attempted to eme the error by entering a remittitur of part of the judgment. This, I presume, will not cure it. It might be a different case to enter a remittitur before judgment.

We need examine no other errors assigned—as for these, judgment must be reversed and the cause remanded,

judgment reversed and cause remanded.

Judgment reversed.