Owens v. Gotzian. tioned. If jurisdiction of the person was obtained in this case in the state court, this court must regard it as conclusive of the question determined, and give it full force and effect. The record discloses personal service upon the defendants, yet the plaintiff urges that the service was made by one of the parties to the action, and that such service is not permitted, and renders the judgment a nullity as to strangers to the action. This proposition is not without force. If the statute prescribes the mode and manner of the service of summons, and authorizes it to be made by any person except a party to the action, the question may well be asked why a judgment entered up without any appearance of the defendants thus served is not beyond the authority of the court rendering it? Why should strangers to the judgment be prevented from establishing, perhaps a prior lien, or a superior incumbrance, on showing that the service of summons was by an incompetent person? The answer is, that this error in the service did not affect the jurisdiction of the court, and is only an irregularity. The actual service upon the defendants appears in the record, and no objection being made before judgment is rendered, the defect is cured by the entry. Such is undoubtedly the rule as between parties to the suit, and it is reasonable that strangers to the record should not impeach it in a collateral action. The service shows a defect in obtaining jurisdiction, not a want of jurisdiction, and it is presumed the court, when judgment was rendered, determined the service attempted sufficient, and passed upon that question. (Thompson v. Lee County, 22 Iowa, 380.) Again, an inspection of the record shows that the person who served the summons, although perhaps a silent partner of plaintiffs, was not by name a party to the suit. There has been no authoritative construction of this statute, but I think the term "not a party to the action" extends only to parties named in the proceedings, and not to a party in interest, whose name does not appear. The objection, at least, should have been made before judgment was rendered. OBJECTION OVERRULED. The Albany. THE ALBANY. 1. A material-man has no lien for repairs or supplies to a domestic vessel. 2. Whether a vessel is foreign or domestic, depends upon the residence of her owners, and not upon her enrollment, where the two are different. 3. The “ Albany was owned at the town of Boscobel, in Wisconsin, and was enrolled at Galena, in Illinois, the nearest collector's office to the residence of the owner; necessary supplies were furnished by the libellant to the vessel at La Crosse, in Wisconsin: Held, that the libellant was not entitled to a maritime lien on the vessel. (Before DILLON, Circuit Judge.) Home - Port.- Residence of Owner. - Place of Enrollment. APPEAL IN ADMIRALTY. A libel in rem was filed in the United States district court for Minnesota, in August, 1875, to enforce a maritime lien for necessary material and supplies furnished by the libellant to the Albany, at the request of the mas These were so furnished by libellant in 1873, at La Crosse, in the state of Wisconsin, where the libellant resided and did business. The owner of the Albany was then, and still is, one Jacob Heime, who resided at Boscobel, in the state of Wisconsin. Boscobel is within the collection district which has its collector's office at Galena, Illinois, where the said Albany was enrolled and licensed, and Galena is the nearest collector's office to Boscobel. The Albany was engaged in navigating the Mississippi river, and during the winters she regularly laid up at Boscobel. She has painted on her stern, as required by the act of congress, the words, "The Albany, Boscobel, Wisconsin." In 1875, the Albany was mortgaged to certain of the claimants, whose mortgages were duly registered just before the seizure of the boat. The mortgagees had no notice of the libellant's claim. The Albany has been at the port of La Crosse as often as once The Albany. a month during each season of navigation, since the libellant furnished said materials and supplies. There were two main questions argued in the district court: 1. Has the libellant a maritime lien? 2. If so, is the same stale as respects the mortgagees? The district court entered a decree in favor of the libellant. The owner and mortgagees appeal. J. H. Davidson, for libellant (appellee). W. P. Warner, for claimants (appellants). DILLON, Circuit Judge. The decisive question in this case is, what was the home-port, or state, of the steamboat "Albany?" It is a question of very great importance, and in respect of which some conflict of judicial opinion appears to exist. It has been deliberately considered, and without spreading upon this opinion all the learning applicable to it, I proceed to state my views concerning it. As strengthening the conclusion arrived at, and illustrating the reasons upon which it is based, it is desirable, briefly, to advert to the general law upon the subject of maritime liens or hypothecations. By the civil law, the material-man, for repairs made or necessary supplies furnished to a vessel, had an implied or tacit lien, whether the vessel was in her home-port or in a foreign port. (Abbott on Shipping, 142; The Lottawanna, 21 Wall. 590; 2 Cent. Law Jour. 410.) And such is the undoubted rule in the maritime nations of Europe, which have adopted the civil law as the basis of their jurisprudence. It is equally well known that this principle has not been adopted as the law of England, or, rather, after having obtained in the admiralty courts of that country for some time, it was overturned by the hostility of the common law courts. (The Zodiac, 1 Hag. Adm. 325.) In the present case, the supplies were furnished to the vessel at the instance of the master, and in the maritime law of Europe certain limitations upon his power, as between him and the owner, The Albany. in respect of contracts for supplies or money to obtain them, are declared to exist. By the celebrated marine ordinance of Louis XIV., whose provisions have been largely embodied in the Code de Commerce, material-men furnishing supplies are entitled to a lien; but this right is subject to the qualification (art. 232, Code de Commerce) that the master shall not, in the place of residence (dans le lieu de la demeure) of the owners or their agent, without special authority, cause repairs to be made, buy sails, cordage, etc., or take up money for that purpose. But if the master violate this duty, the material-man, acting in good faith, is not deprived of his right or remedies. The words, "the place where the owner resides," are construed in France to comprehend the whole district, but not the whole country. (Selden v. Hendrickson [The Richmond], 1 Brockenb. 396, 399.) But in England there is no implied lien recognized for repairs made or supplies furnished in that country the principle of the civil law in this respect having been, as above observed, overthrown by the early hostility of the common law courts to the admiralty jurisdiction. But for necessary repairs made and supplies furnished abroad or in a foreign port, the English courts recognize and enforce a maritime lien. It is important to notice the reasons given in the English courts for this distinction. Lord MANSFIELD says: "Work done for a ship in England, is supposed to be on the personal credit of the employer❞—the owner or master. "In foreign ports," he adds, "the master may hypothecate the ship." (Wilkins v. Carmichael, Doug. 101.) And, finally, the house of lords, in 1789, to conform the law of Scotland to the law of England, in Wood v. Hamilton, decided that persons who had repaired and furnished a ship in Scotland, the place of the owner's residence, had no lien or privilege upon the ship itself. (Abbott on Shipping, ch. 3, part 2, p. 147.) A maritime lien for supplies and necessary repairs abroad, furnished at the instance of the master, the owner being absent, is allowed from necessity and the encouragement of trade. (Abbott on Shipping, 144, 145.) The Albany. The question in England, as to what is the place of residence of the owner, has given rise to controversy; but Lord TENTERDEN says: "I apprehend the whole of England is considered, for this purpose, as the residence of an Englishman; at least before the commencement of the voyage." (Abbott on Shipping, 155; Selden v. Hendrickson, 1 Brockenb. 402, where the subject is discussed by Chief Justice MARSHALL.) But the question is now settled in Great Britain by statutable provision. By 19 and 20 Victoria, chapter 97, section 8, all ports within Great Britain and Ireland, the Channel Islands, and the islands adjacent, if part of the queen's dominions, are to be deemed home-ports in relation to the rights and remedies of persons having claims for repairs done or supplies furnished to ships. Such being the state of the law in Europe and England, it became a question in the admiralty courts in this country, soon after their creation under the constitution, what doctrines they would adopt in respect of repairs and supplies. Some followed the more enlarged right given by the continental or general maritime law; others the more restricted right recognized by the English courts. In this condition of the law, at home and abroad, the supreme court of the United States, in 1819, decided the case of The General Smith, 4 Wheat. 438. In that case a Baltimore merchant furnished supplies to the ship General Smith, which was owned at Baltimore, and the court decided that there was no lien upon the vessel. In delivering its judgment, Mr. Justice STORY thus states the doctrine of the court: "Where repairs have been made or necessaries have been furnished to a foreign ship, or to a ship in the port of a state to which she does not belong, the general maritime law, following the civil law, gives the party a lien on the ship itself for his security. But in respect to repairs and necessaries in the port or state to which the ship belongs, the case is governed by the municipal law of that state, and no lien is implied, unless it is recognized by that law." The case of The General Smith has been frequently approved by the supreme court, and in the recent case of The Lottawanna, 21 Wall. 558, it has been solemnly reaffirmed, with but two dissent |