KRUGER, a German subject, first officer of the steamship “Lothar Bohlen” of Hamburg, Plaintiff in

Error, v. J. J. W. JOHNS, Sr., Defendant in Error.

ARGUED JANUARY 20, 1913. DECIDED JANUARY 29, 1913.

Toliver, O. J., McCants-Stewart and Johnson, JJ.

1. In civil causes of a maritime nature the causes are tried and determined by the judge without the aid of a jury.  

2. A cause in admiralty may be heard at any time, when the circumstances demand it.  

3. When demanded by libellee, the court may grant him time to file his answer to the libel.  

4. In admiralty proceedings in personam, the court may either issue a citation, or where the law permits it, a simple warrant of arrest.  

5. Where either party in admiralty requires the judge to have the testimony recorded to enable him to take an appeal, if necessary, it should be recorded.  

Mr. Justice Johnson delivered the opinion of the court: 

Damages for an Injury to the Domestic Relations—Appeal from Judgment. This was an action in personam brought in the admiralty division of the Court of Quarter Sessions and Common Pleas of Sinoe County, by J. J. W. Johns, Sr., libellant in the court below, now defendant in error, against Kruger, a German subject, first officer of the steamship “Lothar Bohlen” of Hamburg, libellee in the court below, now plaintiff in error, to recover damages for an injury to the domestic relations.  

On the trial of said case, judgment was entered against said libellee who brings the case up to this court for review on a writ of error.  

On inspecting the assignment of errors we find several questions raised, which were not raised in the court below. Generally appellate courts will refuse to consider points, which were not raised on the trial of the case; as the neglect of a party to avail himself of his legal rights at the proper time is considered as a waiver of such rights. As, however, it is the desire of the court to determine certain questions which have been raised by the plaintiff in error as to the practice of admiralty courts, we will proceed to consider the several points raised in the assignment of errors.  

The first error assigned, .is that the court awarded damages without the intervention of a jury. In Benedict’s Admiralty, it is said that admiralty courts, in the exercise of their jurisdiction, are divided into three great classes viz :—Instance, Criminal and Prize courts; and that in civil suits of a maritime character, they are Instance courts in which all cases are heard and determined by the court below without the aid of a jury. (See Benedict’s Admiralty, sec. 330.)  

It was contended, and with a great degree of earnestness, by counsel for plaintiff in error, that article 1, section G of the Constitution of Liberia which gives to parties the right to a trial by jury, applied to cases in admiralty. It might, with equal propriety, be argued that this provision of the Constitution applies also to equity cases and to trial in the courts of justices of the peace.  

We are of the opinion however, that this provision of the Constitution does not apply to Instance courts, where the cause is heard and determined in a summary manner, and that the judge of the court below, did not err in determining the cause, without the aid of a jury.  

The next error assigned is, that the judge erred in failing to reduce his ruling and the statement of the evidence to writing. In the statute laws of Liberia (ch. 7, sec. 15) it is provided that either party may require the judge to reduce his ruling to writing. On inspecting the records, we find nowhere stated that libellee required the judge to reduce his ruling to writing. This point is therefore improperly raised at this stage of the case. As to the neglect of the court to record the statement of witnesses, there seems to be no settled practice as to the duty of the court to record the testimony taken during the trial of a case in an Instance court. Where however, it is required by the parties to enable them to take an appeal, the testimony should be recorded. In this case the records show that both parties waived the recording of the testimony of witnesses; plaintiff in error is therefore estopped from questioning the legality of the proceedings because of this omission.  

The third error assigned is that the court below, did not allow libellee time to file his appearance and a sufficient answer to the action.  

Greenleaf, in his work on the law of evidence, says that all causes in admiralty are summary or instantaneous, it being of primary importance to the interest of commerce and navigation, that justice be done with the least possible delay (Greenleaf on Evidence, vol. III, sec. 401).  

It is also held in the case, Republic of Liberia, appellant, v. John Smith or J. Harris, appellee, that in all admiralty cases, the court of admiralty ought to be convened by the judge in admiralty at any time, when the circumstances demand it, without waiting for the quarterly term (see I Lib. L. R. 13).  

We must observe, however, that when demanded by libellee, the judge should allow him reasonable time to prepare his defense. We find on inspecting the records, that libellee not only failed to ask for time to file an appearance and answer but that he offered exceptions to the libel. In admiralty proceedings if the libellee finds that the libellant is not entitled to the relief sought or that the court has not jurisdiction, instead of answering the libellant, he may except to the libel stating in written exceptions, the points in which he considers libellant’s case defective.  

The exceptions were taken that the court should refuse jurisdiction, (a) because according to admiralty practice, the writ of arrest is not required; (b) the caption of the libel should be J. J.  W. Johns, Sr., for his son ; (c) the libel is indistinct in the affidavit, because it does not show to whom the injury was done.  

In the opinion of the court, the only point worthy of serious consideration is the point raised in the first exception as to the legality of the writ of arrest, and that point we will now proceed to consider.  

In suits in personam, the libellant may pray for a simple citation in the nature of a summons, or, in cases where the law permits an arrest, for a simple warrant of arrest. In this case we find that libellant in his libel prayed that a warrant of arrest might issue, and that the judge ordered the issuance of a writ. We must here observe that if it were not in the power of a court of admiralty to compel the appearance of parties by means of a writ of arrest, it would be impossible in most cases to grant relief to libellants in cases of this kind, as a mere citation would in most cases be disregarded.  

We must here notice a point raised in the argument of counsel for plaintiff in error on the hearing of the ease in this court, that the court below had no jurisdiction over the person of the libellee, because of a defect in the return to the writ; counsel for defendant in error cites in support of his position the case of Cadogan, appellant, v. The Republic of Liberia, appellee (I Lib. L. R. 523).  

In our opinion the cases are not analogous. In the case cited, there was no return to the writ of arrest; while in this case the marshal made a return, in which he stated that he had attempted to arrest the libellee, who showed a willingness to submit to the arrest, but that he had been obstructed by the captain. Subsequently libellant made his appearance in court. We are of the opinion that no further return was necessary to give the court jurisdiction over the person of libellee.  

The court below, therefore, did not err in denying the motion to exercise jurisdiction; and, in the absence of a demand from libellee for time to prepare an answer, in proceeding to try the cause, especially as the libellee, on the denying of the motion, joined issue with libellant by pleading not guilty. It was also assigned as error that the judge entered judgment against libellant and requested him to execute an indemnity bond instead of an appeal bond. We find on referring to the records, that on the trial of the cause, the only witnesses offered were those on the part of the libellant, libellee having waived the right to offer any witnesses, resting upon the evidence of libellant.  

It was in the province of the judge, if, in his opinion, .libellant’s case was supported by the evidence, to enter judgment in his favor; and as there is nothing in the records to show that the court compelled libellee to execute the indemnity bond and that exceptions were taken thereto at the time, this court will not disturb the judgment.  

The judgment of the court below is therefore affirmed with costs.  

C. B. Dunbar and C. A. Minor, for plaintiff in error.  Arthur Barclay, for defendant in error.