#### John Meunier Gun Company, Respondent, vs. Lehigh Valley Transportation Company, Appellant.

*October 19*

November *15, 1904.*

*.Default judgments: Failure of defendant to appear: Notice of application for judgment: Pleading: Admiralty: Jurisdiction of state courts: Contracts.*

1. Two days before the time for answering had expired, no notice of appearance or of retainer for defendant having been served, plaintiff’s attorneys wrote defendant: “We are willing that the time for your appearance in the suit commenced against you, which expires on the 23d, should be extended for ten days, up to and including December 3d, on the assurance of your representatives that there is a probability of the matter being settled by that time, but we cannot consent to anything longer than that, and shall proceed with the lawsuit unless settled by that time.” On December 7, plaintiff’s complaint was verified, and, on proof of the default, after hearing the case, the court entered judgment for the plaintiff on December 8. *Held,*that not having appeared in the case, the defendant was not entitled to notice of the application for judgment.

2. In an action against a carrier on a contract of affreightment, for damages to goods consigned to plaintiff, the answer alleged that the goods were shipped by water under a bill of lading, wherein defendant was exempted from the perils of navigation, as well as by a general average bond, and that the damage was caused by the grounding of the vessel, and its becoming necessary to jettison and lighter the vessel, which was " done. *Held,*that the pleading did not state a cause of action in admiralty jurisdiction, and therefore the state court had jurisdiction.

Appeal from an order of tbe circuit -court for Milwaukee county: OebeN T. Williams, Circuit Judge.

*Affirmed.*

Tin's is an appeal from an order entered January 16, 1904, refusing to vacate tbe judgment entered by default December 8, 1903, in favor of tbe plaintiff and against tbe defendant for $3,545.73. This action was commenced by tbe Service of a summons on tbe defendant, a foreign corporation, 'by delivering tbe same to and leaving it with J. L. Kellogg *144personally — tlie agent conducting tlie business of sucb corporation in this state — November 3, 1903. After some effort to settle the controversy, the plaintiff’s attorneys wrote-the defendant November 21, 1903, in which, among other things, they salid:

“We are willing that the time for your appearance in the suit commenced against you, which expires on the 23 d, should be extended for ten days, up to and including December 3rd,, on the assurance of your representatives that there is a probability of the matter being settled by that time, but we cannot consent to anything longer than that, and shall proceed with the lawsuit unless settled by that time.”

December 7, 1903, the plaintiff made its verified complaint, alleging, in effect, that during all the times therein mentioned the defendant was a common carrier of goods and passengers for hire, owning, running, and operating railway and boat lines for such carriage in Wisconsin, and from the city of New York to the city of Milwaukee; that April 18,. 1903, the defendant received for the plaintiff, from the Winchester Repeating Arms Company, one certain car load of goods, described, to be by it transported from the city of New York to the city of Milwaukee, and the defendant promised and agreed to safely carry the same and deliver them to the plaintiff at Milwaukee in a good and proper condition, for which the plaintiff agreed to pay the agreed freight charges, amounting to $68 and over, and which sum was duly paid before the commencement of this action; that the defendant so received and accepted the goods to be so carried, and the defendant did not safely carry or deliver the goods, as agreed, but so carelessly and negligently conveyed and cared for the same that a portion thereof were never delivered to the plaintiff, and were wholly lost, and the balance-thereof were during such transportation so carelessly and negligently cared for and treated that they were greatly injured and damaged by water and cement coming upon such *145goods, and greatly damaging them, 'and rendering them unfit for the uses and purposes for which they were purchased, as the defendant well knew — giving descriptions and value of the articles in detail, and demanding judgment for $3,421.73, with interest from June 29, 1903, with costs and disbursements of this action. December 7, 1903, one of the attorneys of the plaintiff made and filed an affidavit of default to the effect that more than twenty days had elapsed since the' summons was served upon the defendant, and that no answer or demurrer to the complaint and no notice of appearance therein had been served upon the plaintiff’s attorneys, or received by them. December 8,1903, the trial court found the defendant to be in default, and upon hearing the case decided that the defendant was indebted to the plaintiff upon the cause of action mentioned in the complaint in the sum of $3,512.33, for which amount judgment was therein ordered to be entered, with costs, and judgment was entered therein accordingly on the same day, and written notice of the entry and docketing of that judgment was given to the defendant on the same day. December 11, 1903, the defendant made and served its verified petition to the trial court to vacate and set aside the judgment and let the defendant file and serve an answer, wherein was stated, in addition to the facts mentioned, that between the times of the commencement of the, action and the entry of judgment there were certain negotiations for settlement, and an affidavit of merits, which petition was supported by affidavits relating to such loss and damage and negotiations to settle the same, which affidavits were in some respects controverted by affidavits on the part of the plaintiff and certain letters and correspondence between the-plaintiff and defendant between June 29, 1903, and November 21, 1903. December 24, 1903, the defendant made-,, served, and filed its supplementary petition, accompanied by numerous affidavits and a verified answer, in which it was stated, in effect, in- addition to admissions, that at all times *146since May 23, 1903, it admitted its liability for certain goods of tbe plaintiff lost in transportation, and offered to pay them for snob loss, subject to general average and insurance, and alleged that the goods were shipped in two lots — one by the steamer “Seneca,” which arrived at Milwaukee May 22, 1903, and the other by the steamer “Wilbur,” which arrived at Milwaukee May 30, 1903; that the goods were damaged as claimed; that such damage was caused solely by reason of the dangers and risks of navigation by the grounding of the vessel and its becoming necessary to jettison and lighter the vessel, which was done — -all of which was assumed by the plaintiff by reason of the bill of lading made April 18, 1903, wherein it was stated that “marine risk on lakes insured at shipper’s request and owner’s expense,” and also that “no. carrier or party shall be liable for any loss or damage resulting from the perils of the lakes, sea or other waters,” and the general average bond entered into by the parties May 25, 1903. Upon such showing the court refused to vacate and set aside the judgment and allow the defendant to' defend, and that is the error complained of.

For the appellant there was a brief by *Markham, Hamilton &*Markham, attorneys, and *F. Herbert Janvier,*of counsel, and oral argument by *Talmage Hamilton.*

For the respondent there was a brief by *McElroy & Esch-weiler,*and oral argument by *F. O. Eschweiler.*

Oassoday, C. J.

It appears that negotiations and communications in respect to adjusting and settling the loss and damage complained of continued for more than four months prior to the commencement of this action. Eight days prior to the service of the summons the attorneys for the plaintiff informed the defendant, in writing, that they had been instructed by their client “that, unless something definite” should be “arrived at by the 1st day of November,” they would “have to institute suit.” The suit was commenced *147November 3, 1903. November 21, 1903, and two days before tbe expiration of tbe time witbin wbicb tbe defendant was required to appear in tbe case and answer, tbe plaintiff’s attorneys, in response to something said on behalf of tbe defendant, wrote tbe letter, a portion of wbicb is quoted in tbe foregoing statement. In tbat letter tbe defendant was-plainly informed tbat the time for its “appearance in tbe suit” would expire two days thereafter, and tbat tbe same should be -extended for ten days — up to and including December 3d- — ■ on the assurance of tbe defendant’s representatives tbat there was a probability of tbe matter being settled by tbat time, but tbat they could not “consent to anything longer than tbat,” and should *“proceed with the lawsuit trnless settled by that time."*There could be no mistaking tbe language employed. Nevertheless, the defendant failed to appear in tbe case during tbe ten days mentioned, and did not appear in tbe case during tbe five days tbat followed prior to tbe entry of tbe judgment.

Tbe rule of tbe circuit court provides:

> “Service of notice of appearance or retainer generally, by' ' an attorney for tbe defendant, shall in all cases be deemed an appearance.” Circuit Court Eule VIII. See sec. 2643, Stats. 1898.

In tbe case at bar there was no' appearance. In fact, tbe defendant employed no attorney to appear in tbe case until after tíre judgment was entered. Not-having appeared in tbe case, tbe defendant was not entitled to any notice of tbe application for judgment. No attempt was made to excuse such default. There is no claim tbat tbe defendant failed to appear in tbe case through its “mistake, inadvertence, surprise, or excusable neglect;” much less tbat there was any abuse of discretion in refusing to relieve tbe defendant from such judgment in tbe absence of any such “mistake, inadvertence, surprise, or excusable neglect.” Sec. 2832, Stats. 1898; *Boutin v.*Catlin, 101 Wis. 545, 77 N. W. 910.

*148Counsel for the defendant contend that the facts alleged in the proposed answer show that the action is based upon a contract of affreightment *to he performed on.*the Great Lakes, with a general average adjustment, and hence are matters of admiralty, jurisdiction, of which the state courts have no cognizance; citing sec. 2. art. Ill, Const. U. S. It is true that “upon an ordinary contract of affreightment the lien of the shipper is a maritime lien, and a proceeding *in rem*to enforce it is within the exclusive original cognizance” of courts of admiralty. *The Belfast,*I Wall. 624. “The distinguishing and characteristic feature of such suit” in admiralty, said Mr. Justice Field, speaking for the court, “is that the vessel or thing proceeded against is itself seized and impleaded as the defendant, and is judged and sentenced accordingly.”' *The Moses Taylor,*4 Wall. 427. The statute of the United States giving to federal courts such exclusive jurisdiction expressly saves “to suitors in all cases the right of a common-law remedy where the common law is competent to give it.”' Subd. 8, sec. 563, R. S. U. S. [U. S. Comp. St. 1901, p. 457]; *The Moses Taylor,*4 Wall. 411, 427, 431; *The Belfast,*7 Wall. 624, 643. These cases have been repeatedly followed by this court. *Warehouse & B. S. Co. v. Galvin,*96 Wis. 523, 527, 71 N. W. 804; *Reynolds v. Nielson,*116 Wis. 483, 485, 93 N. W. 455. It is a common practice for state-courts to take jurisdiction and determine questions of general average. *Nimick v. Holmes,*25 Pa. St. 366; *Nelson v. Belmont,*21 N. Y. 36; *Libby v. Gage,*14 Allen, 261; *Emery v. Huntington,*109 Mass. 431. It is enough to say that neither the complaint nor the proposed answer states a cause-of action in admiralty within the ¡orinciples of the authorities cited.

*By the Gourt.*— The order of the circuit court is affirmed.