1. When a motion is made by an appellant to examine witnesses in
this Court in an appeal in admiralty, the appellant should show
some excuse satisfactory to this Court for the failure to examine
them in the courts below, such as that the evidence was discovered
when it was too late to procure such examination or than the
witnesses had been subpoenaed and failed to appear and could not be
reached by attachments and the like.
2. Hence where on such a motion his affidavit stated only that
the witnesses were material ones without whose testimony he could
not proceed to the hearing, as he was informed and believed and as
he was advised by his counsel after a full statement to him of the
facts which he expected to prove by the persons whom it was
proposed to examine, the motion was denied.
Atkins had libeled the steam tug
Mabey in the district
court at New York for injury done by the
Mabey to a vessel
of his then in New York harbor. The district court decreed in his
favor, and the circuit court affirmed the decree. The owner of the
Mabey appealed to this Court, and Mr. T. M. Wheeler, in
his behalf, now moved the Court for a commission to take further
evidence to be read in this Court on the hearing. The affidavits on
which the motion was founded gave the names of several witnesses
represented as residing in New York and Brooklyn, and swore
that
"they were material and necessary witnesses in the action on
behalf of the appellant, without the benefit of whose testimony he
could not safely proceed to trial, as he is informed and believes,
and as he is advised by his counsel therein, after a full and fair
statement of the facts which the appellants expect to prove by the
said witnesses."
MR. JUSTICE NELSON delivered the opinion of the Court.
No excuse is shown in the papers on which the motion is founded
why the witnesses named and proposed to be examined were not
examined in some one of the courts below before the hearing there.
The affidavit simply states that the testimony of these witnesses
is material, as advised by counsel.
Page 77 U. S. 420
This is not in accordance with the practice of the Court. Some
excuse, satisfactory to this Court should be shown for the failure
to examine them in the courts below, such as that the evidence was
discovered when it was too late to procure such examination or that
the witnesses had been subpoenaed and failed to appear, and could
not be reached by attachments, and the like. [
Footnote 1]
Many of the cases bearing on this subject are cases of amendment
in the appellate court by adding new allegations and giving new
proofs. [
Footnote 2] But they
involve the practice applicable to motions simply to examine
witnesses in the appellate court. There can be no substantial
amendment in this Court, but if the pleadings or evidence are so
defective that no decree can be founded upon them, and the case
appear to have merits, the Court will reverse the decree and remand
the cause to the court below with directions to permit amendments
and further proofs. [
Footnote
3]
It is quite apparent if commissions were to be allowed by this
Court to issue as a matter of course, on a formal application under
the twelfth rule, without requiring any excuse for not taking the
evidence in the usual way before the courts below, the privilege
would be open to great abuse, disturbing the orderly proceedings in
courts of admiralty. Instead of taking proofs in the cause in the
courts below, and there thoroughly trying it, much of the evidence
could safely be omitted, relying on the new evidence in this Court.
There is no hardship upon the parties in guarding against this
abuse with great care and strictness, as they have two
opportunities to procure the attendance and examination of the
witnesses before they come here on appeal -- first, before the
district court and again before the circuit.
Motion denied.
[
Footnote 1]
The Boston, 1 Summer 328, 331;
Coffin v.
Jenkins, 3 Story 108;
The William, 7 Irish Jurist
354;
Jarvis v. Chandler, 1 Turner & Russell 319.
[
Footnote 2]
Parsons on Shipping, 2 vol., pp. 429-431 and note; Conklin's
Admiralty, pp. 418-419;
Lamb v. Parkman, 2d Circuit, per
Curtis J., 21 Law Reporter 589.
[
Footnote 3]
Brig Caroline,
7 Cranch 496;
Mary Anne, 8
Wheat. 380.
