WAINRIGHT & TWELVES vs. SANDERS

WAINRIGHT & TWELVES vs. SANDERS. 1. A steamboat being in tbe possession of tbe sheriff under a writ of seizure was replevied, tho stipulators entering into bond to pay the judgment which might be rendered on tbe libel, and the boat was delivered to them. They afterwards re-delivered her ir.to the possession of the sheriff, and he returned the writ of seizure, (showing these facts in his return,) and also the bond given by the stipulators. Judgment was afterwards rendered in favor of the libellant, and a sale of the boat was decreed to pay the judgment out of the proceeds. It was held, That the decree might be amended at the next subsequent term nunc pro tunc, by setting aside the order of sale, and rendering a decree upon the bond against the stipulators. ERROR to tbe City Court of Mobile. Tried before tbe Hon. Alex. McKinstry. Pitman Sanders filed bis libel in tbe City Court of Mobile, against tbe steamboat Arkansas, No. 5, upon wbicb a writ of seizure was issued, and tbe boat taken into possession by tbe sheriff. Wainrigbt and Twelves entered into bond, by wbicb they stipulated to pay tbe judgment tbat should be rendered on tbe libel, and tbe boat was delivered to them. After this tbej re-delivered tbe boat into tbe possession of tbe sheriff, and be returned tbe writ of seizure, showing that be bad taken tbe boat into bis custody, also that she bad been replevied by Wainrigbt and Twelves, and that they bad re delivered her into bis possession. He also returned tbe bond or stipulation, showing that they bound themselves to pay tbe judgment that should be rendered on tbe libel. Stewart George, tbe owner of tbe boat, interposed bis claim, and by bis answer controverted tbe justice of tbe libellant’s demand; but at tbe August Term, 1850, of tbe City Court, a decree was rendered in favor of tbe libellant for one hundred and sixty-five Ts/7 dollars, besides costs of suit, and tbe boat was decreed to be sold according to law, and from tbe proceeds of sale tbe said sum was ordered to be paid. On the third day of September, 1850, which was at tbe next term after tbe decree, ascertaining tbe amount of tbe libellant’s demand, and ordering tbe boat to be sold, was rendered, tbe libellant, Pitman Sanders, moved tbe court to amend tbe decree that bad been rendered, and to set aside tbe order of sale, and to render a decree upon tbe bond against tbe stipulators. This motion was granted, and a decree nunc pro tuno rendered 'against tbe stipulators; to reverse which, a writ of error is prosecuted to this court. HAMILTON for plaintiff in error: 1. Tbe first exception is to tbe action of tbe court in compelling tbe party to appear to tbe motion, and to tbe court taking jurisdiction of tbe motion without regular notice of tbe same being given to tbe defendant. 2 Brown’s Admiralty, 429; Benedict’s Admiralty, 299. There is no evidence of Wainright ever having been notified at all. Both of tbe defendants bad good reason to consider themselves discharged, by reason of tbe condemnation of tbe boat, and tbe order for its sale made at the preceding term. 2. It.is objected, that tbe court bad no power to render judgment on this motion, at tbe September Term, after a final decree in tbe cause at tbe August term. 3 Stew. Rep, 288,296; 3 Ala. Rep. 668. Tbe same rule obtains in Admiralty Courts. Betts Admiralty, 100; Bee’s Rep. 64; 10 Wheat. 441; 7 Cranch, 1; 8 Sumner, 495, 508. The decree at the August term was a final decree. 2 Ala. Rep. 171; 5 Peters’ Rep. 675; Dunlap’s Admy. Prac. 824-7; 13 Ala. Rep. 681; 6 Peters’ Rep. 145 ; 8 Dallas, 401. 3. The motion in this case, though called a motion to amend the decree nunc pro tunc, is not in fact, a motion of that character; it is a motion for a new decree, and for a personal judgment, and not to modify the decree in ram, theretofore rendered. Under the decisions of this court, the motion should not have been sustained. 9 Porter’s Rep. 252, 272, 193, 446, 163; 2 Ala. Rep. 164; 2 Stew. Rep. 470; 10 Ala. Rep. 375; 15 Ala. Rep. 202. Possibly the correct course of proceeding by the libellant, would be by libel of review. See Dunlap’s Admry. pp. 324-7. 4. The judgment on the motion is erroneous. The proceedings are in rem. The boat had been seized by the sheriff, and had been restored to the possession of the master (Wain-right ;) and he again on the 7th J.uly, before the first decree, had returned the boat to the custody of the sheriff. She was in the possession of the court at the time of the decree, and lib-ellant had obtained an order of sale. Bail can surrender their principal and release themselves. So in the admiralty, a stipulation is a mere substitute for the thing. Dunlap’s Admiralty. Prac. 191; 12 Wheat. Rep. 10. And the stipulators h&ving surrendered the boat to the sheriff, and he having accepted the surrender, the libellant must be content with the boat; he cannot have the thing and stipulation too. lie has a perfect decree under the proceedings had at the August term, a condemnation and order of sale. He took the boat itself to satisfy his demand, and that ought to be held a waiver of the stipulation. That decree is valid and operative, and unappealed from. He cannot have two decrees. If the boat is not of value sufficient to answer all demands against it, it is his misfortune, but not the fault of the stipulators. Jewett, for defendant: The bond or stipulation entered into in this cause, was such, as to discharge the lien on the boat, and therefore no condena-nation and decree of sale could be awarded. Richardson y. Cleveland, 5 Porter, 251; Witherspoon y. Wallis, 2 Ala. Rep. 667 ; Rouse, &c. v. Jayne, 14 Ala. Rep. 731; Williamson y. Brooks, 3 Ala. Rep. 33. Tbe only question tbe stipulators can inquire into is tbe decree against them. Livingston v. Tallapoosa, 9 P. Ill; Witherspoon v. Wallis, 2 Ala. Rep. 667; 3 Stew. &P. 223; 1 Mason, 431; 3 Dallas, 188. As to tbe necessity of notice to tbe stipulators for judgment against them. See Dunlap’s Adm. Prac. 182; 1 Gallison, 148; 1 Mason, 431. [MAJORITY — DARGAN, O. J.] DARGAN, O. J. I do not consider it necessary to combat the position, that tbe decree rendered at tbe August term of tbe City Court was final. But admitting it to be so, I still think tbe court bad tbe power to set aside the order of sale, and render a decree against tbe stipulators for tbe amount ascertained to be due to the libellant. When tbe boat was reple-vied by Wainright and Twelves, upon their giving bond to pay tbe judgment or decree that should be rendered, tbe lien on tbe boat was discharged. Clay’s Dig. 139; Richardson et al. v. Cleaveland & Huggins, 5 Porter, 251. Tbe bond given by Wainright and Twelves was a substitute for tbe boat, and tbe power of tbe court over tbe vessel itself was gone. Nor could tbe voluntary surrender of tbe boat back into tbe possession of tbe sheriff, discharge tbe stipulators from their bond, nor revive tbe lien that existed upon the boat before tbe stipulation was given. Indeed, I see no reason why tbe stipulators could not, on tbe next day after they bad re-delivered tbe boat to tbe sheriff, have again demanded her of him; for their bond stood in lieu of tbe boat, and tbe libellant bad no claim upon it. If this be so, if tbe boat was not in tbecustody of tbe law, and if no lien existed upon it, in favor of tbe libellant, in consequence of tbe stipulation that had been given, it follows, to my mind conclusively, that tbe court bad no authority or jurisdiction to order a sale of tbe boat; and if it bad not, that portion of tbe decree that directed tbe boat to be sold, is void; and being so, tbe correct decree might well have been rendered upon tbe bond at tbe next succeeding term, without impugning tbe general rule, that no court can alter its final judgments after tbe term at which they are rendered. Suppose, for tbe sake of illustration, tbe decree at tbe August term had only ascertained tbe amount of tbe libellant’s demand, without ordering tbe boat to be sold; then it would not be denied, but that judgment might be rendered against tbe stipulators nunc pro tunc at tbe September term, for tbe record would show what judgment should have been rendered; just in tbe same manner, as a verdict at common law would show tbe judgment that should be rendered, and warrant its rendition at a term subsequent to tbe finding of tbe verdict. Now I think tbe legal effect of tbe decree is tbe same, as if tbe order of sale bad not been inserted; for what is done without authority, or jurisdiction, is a nullity, and tbe court bad no authority to make this order; consequently tbe decree could well be perfected at tbe next term. But it is supposed that this view is inconsistent with tbe decision of this court in tbe case of Stewart George v. Skates & Co., decided at tbe last term, involving this very decree. But I am not able to see tbe slightest incongruity between tbe two cases. Tbe record in tbe case decided at tbe last term showed, that after tbe sheriff made bis return, other creditors of tbe boat, whose debts created a lien on it, intervened, and sought to condemn tbe boat to tbe payment of their debts. Stewart George, tbe claimant, made no objection on account of tbe jurisdiction of tbe court, but simply controverted tbe justice of their demands. After tbe decree of sale was made, it further appeared that tbe boat bad been sold, and tbe proceeds of tbe sale were in tbe bands of tbe sheriff for distribution. Then, but not until then, did tbe claimant raise tbe objection to tbe jurisdiction, and this was done on a motion to have tbe money paid to him. Under these facts we held, that it could not be said that tbe court was without jurisdiction, inasmuch as it bad tbe actual possession of tbe boat, bad ordered its sale, and bad tbe money arising from tbe sale under its control. But it must be borne in mind, that tbe debts of the intervenors created a lien on tbe boat, and on tbe fund in court, which was produced by its sale. Tbe only remaining duty left for tbe court in that case was to distribute tbe fund, and surely it did right in ordering its payment to those who were first entitled. But tbe record before us shows no sale, nor any debt wbicb constitutes a lien on the boat; but simply shows a decree ascertaining the amount of the libellant’s demand, and the order of sale. This order of sale may be treated as a nullity, for the record shows no debt or demand that can be enforced as a lien upon the boat; and as it might be so treated, there can be no error in rendering the decree nunc pro tunc against the stipulators. Let the judgment be affirmed.