#### Dowell & Bowman et al. *v.*James Goode.

1. A lien exists under the maritime law for supplies furnished to a vessel in’ the port of a state in which her owner does not reside.

2. A suit *in rem*against the vessel to enforce such lien, can not he maintained in a state court, the exclusive jurisdiction, in such case, being vested in the courts of the United States.

3. Bor the purpose of ascertaining whether such lien exists, the home port of the vessel is to be determined by the residence of the owner, and not by the place of her enrollment.

4. "Where a vessel was furnished with supplies at the port of Cincinnati, the place of her enrollment, no owner residing in this state, the right to assert a maritime lien against the vessel, for such supplies, is not affected by the fact that one of the owners of the vessel resided in the adjoining city of Covington, in the State of Kentucky.

6. Where a judicial sale has been made on void process, the court may, while the purchase money remains in the hands of the sheriff, on the application of the purchaser, set aside the sale and order the purchase-money to be refunded.

Error to the Superior Court of Cincinnati.

In July, 1866, Dowell & Bowman, N. M. Florer, and' sundry other parties, severally instituted suits, in the Superior Court of Cincinnati, under the water-craft law,, against the Steamboat Melnotte. Under warrants issued in these suits the boat was seized, and subsequently judgments* were rendered on d efault. Some of these suits, it is admitted, were for maritime causes of action; the others were for supplies furnished to the boat, at the port of Cincinnati, where-she was licensed and enrolled:

After the commencement of these suits, Johnson *&*Co.,. Warden, Rensford & Co., and Witte & Co. instituted civil actions in the same court, against the owners of the boat, John B. Taylor and Preston Conway. In these suits writs of attachment were issued against the defendants as nonresidents, Taylor residing in Covington, Kentucky, and Conway in Rising Sun, Indiana. Under these writs the *391boat and a barge were attached as the property of the defendants. J udgments were subsequently recovered in these, cases, but the amount of such judgments is not shown by the record, except in the case of "Warden, Rensford & Co., which the order of sale shows to have been for $127.84.

Execution was issued in the case of Elorer, under which the sheriff' sold the boat to Goode, the defendant in error, for $1,450, and an order of sale was issued in the attachment suit of "Warden, Rensford & Co., under which the barge was sold for $400, the sheriff' reporting as to both sales that he held the money arising therefrom subject to the order of the court.

The court find that at the time of the sale, the sheriff held both the execution and the order of sale; and, “ that immediately upon the announcement by the sheriff' that he had sold the boat, said sheriff withdrew his watchman and yielded possession to the purchaser, but the United States marshal for the southern district of Ohio seized said boat, said purchaser being present, in proceedings pending in admiralty in said district, said proceedings having been instituted before the date of said sale, and said boat remained in the possession of said marshal until he sold the same and delivered her to a purchaser. Said boat never was in actual possession of said Goode, unless such possession can be inferred from the facts stated above; the said Goode, however, paid the amount of his purchase of said boat to the said sheriff at the office of said sheriff, after said marshal took possession of said boat.”

The court also find that Covington, Kentucky, “is within the limits of the port of Cincinnati.”

The court, on motion of the purchaser, set aside the sale of the Melnotte, and ordered the purchase money to be refunded. This motion was resisted by the creditors; and, with the exception of Johnson & Co., they prosecute the present petition in error to reverse such order.

*JEoadly, Johnson Sf Colston,*for plaintiff in error:

I. A material-man has no claim in admiralty, unless his *392supplies are furnished in *a foreign*port. If furnished in the *home port,*he must seek redress in the tribunal's of the state. *The General Smith,*4 Wheat. 438; *The St. Lawrence,*1 Black, 529; Am. Law Reg., August, 1869, p. 470. Domestic ports are not distinguished from foreign ports by state lines. 9 Wheat. 417.

II. The plaintiffs furnished the supplies in the *home port,*and can not be heard in an admiralty court, and therefore the state has a perfect right to furnish them a remedy *in rem,*such as the water-craft law proposes. *Wyatt*v. *Stuckley,*29 Ind. 279; *Williams*v. *Hogan,*46 Ill. 517; *Roach*v. *Chapman,*22 How. 129; *Steamboat General Buell*v. *Long,*18 Ohio St. 521.

On the subject of jurisdiction, see *The Belfast,*7 Wallace, 624; *Thorsen*v. *The Schooner F. B. Martin,*26 Wis. 488; *Maguire*v. *Card,*21 How. 251; *Mitchell*v. *The Steamboat Magnolia,*45 Mo. 67.

*Matthews, Ramsey Matthews,*for defendant in error :

I. In the case of Dowell & Bowman, the Superior Court of Cincinnati had no jurisdiction whatever, and the refusal of the court to grant a motion made.in that case, by the plaintiff in error, was simply a refusal to exercise jurisdiction, and can not be alleged as error. Power over its own process is possessed by all courts. *Draine*v. *Smelser,*15 Ala. 423; *Reed*v. *Diven,*7 Ind. 189; *Nelson*v. *Bowen,*23 Mo. 13; *Cumming’s Appeal,*23 Penn. St. 509; *Jones*v. *R. R. Co.,*32 N. H. 544; *Davis*v. *Campbell,*12 Ind. 192; *Hayden*v. *Dunlap,*3 Bibb, 216; *McLean County Bank*v. *Flagg,*31 Ill. 295.

II. The Superior Court had no jurisdiction in the Elorer case, That action was for supplies, and the claim is that the supplies were furnished at Cincinnati, and that Cincinnati was the *home port*of the vessel Melnotte. Both these assumptions are necessary to uphold the asserted jurisdiction. There is nothing whatever in the record to show that the supplies were furnished at Cincinnati, and this -court, for the purpose of maintaining the action of the *393court below, is bound to suppose tbe fact to be that the supplies were not furnished at Cincinnati.

III. It is the place of the owner’s residence, and not the place of enrollment, that determines the character of a vessel, as foreign or domestic, in reference to any particular port. 2 Parsons’ Shipping and Admiralty, 325; *Dudley*v. *Steamboat*Superior, 1 Newb. Adm. 176; *Hill v. Golden Gate,*1 Ib. 308; *Weaver*v. *The Steamboat Owens,*1 Wall. Jr., C. C. 365.

Each of the states of the Union is considered as foreign as to the rest. *The Brig Nestor,*1 Sumner, 74; *The General Smith,*4 Wheat. 438; *The Barque Chusan,*2 Story, 460; *Leland v. The Ship Medora, 2*Woodb. & Min. 97; 1 Dod. 205; *The St. Iago de Cuba,*9 Wheat. 417; *Thomas*v. *Osborn,*19 How. 29.

IV. The proceedings and judgment in the Elorer casebeing void for want of jurisdiction, the sale to Goode made under them was invalid. *Abby*v. *Ward,*8 Mass. 79; *Webster*v. *Reid,*11 How. 437; *Wright*v. *Boon, 2*G. Greene, 457; *Harshey*v. *Blackmerr,*20 Iowa, 161.

V. The proceedings, judgment, execution, and sale being void for want of jurisdiction on the part of the court, that court did not err in rescinding the void orders and restoring the parties to their former condition. *Mail Company*v. *Flanders,*12 Wall. 135.

White, J.

The principal question arising in this case, is whether the Superior Court had jurisdiction in the several ■suits instituted against the steamboat Melnotte, under the water-craft law of this state. Several of these suits are conceded to be founded on maritime contracts; others were brought to recover for supplies furnished to the boat at Cincinnati, which is claimed to be her home port. Of the latter class, is the case of N. M. Elo'rer, on whose judgment the execution was issued under which the boat was sold.

The boat was enrolled at the port of Cincinnati, and at the time the several causes of action accrued she was owned by John B. Taylor and Preston Conway, the former of *394whom resided in Covington, Kentucky, and the latter in Rising Sun, Indiana.

The case has been elaborately argued • but we deem it unnecessary to review the numerous cases cited by the respective counsel. We shall content ourselves, mainly, with stating the conclusions at which we have arrived, as bearing upon the determination of the case before us. These-conclusions are clearly supported by the authorities, and determine the present case. They are as follows:

1. A lien exists, under the maritime law, for supplies furnished to a vessel in the port of the state in which her owner does not reside.

2. A suit *in rem*against the vessel to enforce such lien, can not be maintained in a state court, the exclusive jurisdiction in such case being vested in the courts of the United States.

3. Eor the purpose of ascertaining whether such lien exists, the home port of the vessel is to be determined by the residence of the owner, and not by the place of her enrollment.

4. Where a vessel, as in this ease, was furnished with supplies at the port of Cincinnati, the place of her enrollment, no owner residing in this state, the right to assert a maritime lien against the vessel for such supplies, is not. affected by the fact that one of the owners of the vessel resided in the adjoining city of Covington, in the State of Kentucky.

The proximity of the residence of the owner, will not rebut the presumption that the supplies were furnished on the credit of the vessel, when to deny the lien would be to require the the material-man to seek his remedy *in personam,*in a foreign jurisdiction.

5. Where a judicial sale has been made on void process, the court may, while the purchase money remains in the-hands of the sheriff, on the application of the purchaser, set aside the sale, and order the purchase money to be refunded.

It is claimed, however, that the order setting aside the *395sale, and directing the return of the purchase money is. erroneous, because of the attachments that had been levied on the boat. There were three suits in attachment, instituted respectively by Johnson & Co., Warden, Rensford & Co., and Witte & Co. The amount of the judgment recovered by Warden, Rensford *&*Co., was $127.84. The amount of the judgments in the other cases does not appear from the record; nor are Johnson *& Go.*parties to this proceeding in error. The attachments were levied on a barge as well as on the steamboat. The barge was sold under the order of sale issued in the case of Warden, Rensford & Co., for $400. This money was returned by the sheriff, as subject to the order of the court, and was, for aught that appears by the record, more than sufficient to satisfy the attachments. We are not called on, therefore, by this case, to determine, whether the attaching creditors would have had the right, under other circumstances, to. resist the refunding of the purchase money.

*Judgment affirmed.*

McIlvaine, C. J., Welch, Rex, and Gilmore, JJ., con curred.