
    123 F. 366
    BRUCE et ux. v. MURRAY.
    No. 857.
    Circuit Court of Appeals, Ninth Circuit.
    May 4, 1903.
    
      A. Rawson, for appellants.
    Francis McNulty, for appellee.
    Before GILBERT, ROSS, and MORROW, Circuit Judges.
   MORROW, Circuit Judge,

after stating the facts as above, delivered the opinion of the court.

It is assigned as error that several causes of action were improperly united, that there was a defect of parties defendant in said third amended complaint, and that the court erred in entering a decree and judgment against the defendant Miner Bruce in the second, third, and fourth causes of action, and directing the marshal to sell the steamer Fortune Hunter for the payment of said judgment.

The act of Congress entitled “An act making further provision for a civil government for Alaska, and for other purposes” (Act June 6, 1901, c. 786, 31 Stat. 321), provides in section 4, tit. 1, 31 Stat. 322 (48 U.S.C.A. § 101 and note), that “there shall be a court of general jurisdiction in civil, criminal, equity, and admiralty cases.” In section 699, tit. 2, 31 Stat. 443, it is provided that the District Court is a court of general jurisdiction, civil and criminal, and also that it shall have admiralty jurisdiction. In section 1, tit. 2, 31 'Stat. 333, it is provided that “the distinction between actions at law and suits in equity, and the forms of all such actions and suits, is abolished, and there shall be but one form of action for the enforcement and protection of private rights, and the redress and prevention of private wrongs, which is denominated a civil action.” The uniting of proceedings for the foreclosure of a mortgage with causes of action to enforce liens for wages against the vessel appears to have been based upon the theory that all these causes of action arose out of contracts, and the remedy for defaults in the performance of such contracts were proceedings in rem against the vessel, enforceable in one form of civil action in the District Court; that court having jurisdiction under the statute in civil, equity, and admiralty cases.

But this statute does not mean that actions arising in these several branches of general jurisdiction may be joined in one complaint. This is clearly indicated by other provisions of this same statute. In section 84 of title 2, 31 Stat. 345, under the chapter title, “Of the General Rules of Pleading,” it is provided that “the plaintiff may unite several causes of action in the same complaint when they all arise out of” certain causes of action classified under seven different heads; “but the causes of action so united must all belong to one only of these classes, and must affect all the parties to the action, and not require different places of trial, and must be separately stated.” In section 369 of the same title, 31 Stat. 394, under the chapter heading, “General Provisions Relating to Actions of an Equitable Nature,” it is provided that “the plaintiff in an action of an equitable nature may unite several causes of action in the same complaint, where they all arise out of” certain causes of action classified under six different heads; “but the causes of action so united must all belong to one of these classes, and must affect all the parties to the action and not require different places of trial, and shall be separately stated.”

Under these two sections a cause of action of an equitable nature cannot be united with an action at law, and, where separate causes of action belong to different classes of either jurisdiction, they cannot be united in one complaint. The admiralty jurisdiction of the court is also a separate and distinct general jurisdiction, in which the practice and proceedings under section 917 of the Revised Statutes of the United States [28 U.S.C.A. § 730] are regulated by rules prescribed by the Supreme Court of the United States. This jurisdiction of the District Court of Alaska in admiralty is the same as that vested in the federal district courts. In re Cooper, 143 U.S. 471, 12 S.Ct. 453, 36 L.Ed. 232. See, also, American Ins. Co. v. Canter, 1 Pet. 511, 7 L.Ed. 242, and City of Panama, 101 U.S. 453, 461, 25 L.Ed. 1061. Each of these separate jurisdictions has its own system of legal principles, and its own practice or course of procedure, so that a suit at law, a suit in equity, and a suit in admiralty can hardly be said to resemble each other. Benedict’s Admiralty (3d Ed.) § 201. And, while the same substantial claim may be a matter of controversy in either jurisdiction, it is equally true that a cause of admiralty and maritime jurisdiction cannot be united with an action at law, or with a cause of an equitable nature, and be prosecuted under the rules of practice and mode of procedure provided for in either of those jurisdictions.

This distinction is illustrated in this case. The original suit, as has been stated, was an action to foreclose a mortgage lien upon a vessel. The action was commenced by filing the complaint with the clerk of the court and the issue of summons thereon, as provided in sections 14. and 42 of the Alaska Code (31 Stat. 335, 338). This summons was addressed to Miner Bruce and Julia M. Bruce, his wife, defendants named in the complaint. This summons required the defendants to appear within 30 days after the service c>f summons, exclusive of the day of service, and defend the action. But before this time had expired the plaintiff filed an amended complaint, in which it was alleged that the plaintiff, by her agents and attorneys, had gone on board the vessel to ascertain the condition of the mortgaged property, and found the same in charge of John W. Morgan as captain, Joseph Hendrich as engineer, and W. G. Woodworth as fireman, each of whom claimed to have a claim and lien for wages against the property. In other words, these parties asserted a maritime lien for wages due for services rendered on board the vessel. These claims, it is alleged, were assigned to plaintiff, and a judgment is asked for the amount found due on these claims, together with the amount found due upon the mortgage. The proceeding against the vessel for the purpose of enforcing these two classes of liens was the summons to the defendants in the foreclosure suit. This was an impossible procedure with respect to the assigned claims for wages. To give the court jurisdiction of the causes arising in the admiralty and maritime jurisdiction, it was necessary that the proceedings should have been taken in accordance with the rules of practice in that jurisdiction. The plaintiff, or libelant, as he is called, should have filed a libel containing a statement of the case upon which the libelant claimed the right to recover, closing with a prayer for the proper relief and for the process by which the adverse party or thing was to be brought before the court. This was not done, and no process was issued upon the causes of action arising upon the assigned claims. The vessel was not brought before the court by monition, order of attachment, or seizure, or other notice, and the vessel was therefore not subject to the jurisdiction of the court with respect to such causes of action.' To give jurisdiction in rem the subject proceeded against must be within the jurisdiction of the court, and there must be an actual seizure and control of the res by the marshal; otherwise, the admiralty court has no jurisdiction. Henry’s Admiralty Jurisdiction and Procedure, § 132. Furthermore, it has been held that an assignment by a seaman of his wages confers upon his assignee no right to maintain a suit in rem against the vessel for the recovery of the wages assigned. Patchin v. The A. D. Patchin, 12 Law Rep. 21, 18 Fed.Cas. 1290 (No. 10,794); Logan v. The Æolian, 1 Bond, 267, 15 Fed.Cas. 786 (No. 8,465).

In The Resolute, 69 F. 742, the District Court of Oregon held that a lien for seamen’s wages will be enforced in the hands of an assignee thereof when there is no reason to question the fairness of the assignment, following the opinion of the District Court of Mississippi in The New Idea, 60 F. 294. The case of The Resolute was appealed to the Supreme Court of the United States (168 U.S. 437, 18 S.Ct. 112, 42 L.Ed. 533), and decided wholly upon a jurisdictional question; the court saying, however: “In the case under consideration a portion of the libelant’s claim arises by assignment from Tellefson, and the authorities are almost equally divided upon the question whether such assignment carries the lien of the assignor to his assignee.”

No decision upon this point was made, it not being a jurisdictional question. But one point has been fully determined, and that is that the master of the vessel has no lien for wages. The Orleans v. Phœbus, 11 Pet. 175, 184, 9 L.Ed. 677; Norton v. Switzer, 93 U.S. 355, 365, 23 L.Ed. 903; The Nebraska, 75 F. 599, 21 C.C.A-. 448; The assigned claim of John Morgan for $438.18 was for his services as the master of the vessel. As the plaintiff had no lien upon the vessel for this claim, the judgment was for this reason erroneous.

It results from these principles, governing the practice and procedure in the District Court of Alaska, that several causes of action were improperly united, and that the court erred in entering a decree and judgment against the defendant Miner Bruce in the second, third, and fourth causes of action, and directing the marshal to sell the steamer for the payment of said judgment.

Judgment reversed, with instructions to the court below to sustain the demurrer to the third amended complaint.  