When a case is within the jurisdiction of the court and there
has been no defect in removing it from the subordinate court to
this, the Court will not dismiss the case on motion made out of the
regular call of the docket.
In March, 1867, Harris, Howell & Co. libeled the steamer
Eutaw in the district court at New York for repairs,
supplies, advances, and labor and services to the vessel at
Wilmington, N.C. The answer denied generally the allegations of the
libel. A reference was made by consent to a master to ascertain and
report the amount due, "the same proof of the payment and propriety
of payment of bills to be made as if before the court." The master,
after admissions or proofs heard, found $4,140.94, one item of this
sum being $1000 for "commissions at 2 1/2 percent," and this item
being allowed on an allegation of a custom of maritime countries,
and of which, as prevalent at Wilmington, specific proofs were
given or attempted in the shape of affidavits from commission
merchants of that place, and otherwise in more formal shape. This
item, unlike most of the charges, was apparently
not
admitted, though it was not attempted specifically to be
disproved, it being left to be judged of on the record and the law.
The respondents not excepting, so far as the record seemed to show,
to this item of $1,000, or to any other item found in the report,
nor moving any correction nor objecting to confirmation, the report
was confirmed in May, 1868, by the district court. From that decree
the respondents appealed
Page 79 U. S. 137
in about two years afterwards (March 19, 1870), to the circuit
court, assigning error in a general allegation "that the said
decree is erroneous inasmuch as the said libellants were not
entitled to the damages claimed in the premises," and in the prayer
for an appeal stating that on the appeal the appellant "intended to
make new allegations and introduce the same and new and further
proofs." In the circuit court, no new allegations being made of
record nor further proofs introduced, the case was argued and taken
into advisement. As was said in the briefs of one side and not
contradicted in those of the other, the court on one hearing
(before Nelson, J.) set aside the report or decree, though
afterwards, on reargument (before Woodruff, J.) affirmed it.
Nothing of this difference of view between the judges appeared on
the record.
From this decree, made March 19, 1870, the case was brought here
by appeal two months afterwards and now stood No. 403, a number
quite far on upon the list, and making the case, if left to be
heard in ordinary course, not likely to be reached for a
considerable time.
The 23d rule of this Court declares:
"In all cases where a
writ of error shall delay the
proceedings on the judgment of the inferior court and shall appear
to have been sued out merely for delay, damages shall be awarded at
the rate of
10 per centum per annum on the amount of the
judgment, and the said damages shall be calculated from the date of
the judgment in the court below until the money is paid. "
Page 79 U. S. 139
MR. JUSTICE CLIFFORD delivered the opinion of the Court.
Cases regularly on the calendar, whether brought here by writ of
error or appeal, if within the jurisdiction of the Court, are
required to be heard when reached in the regular call of the
docket, and they cannot be heard before they are reached except
when they are advanced by the order of the court.
Where the case is one not within the jurisdiction of the Court,
the writ of error or appeal may be dismissed on motion, and certain
defects in removing the cause from the subordinate court into this
Court entitle the party who prevailed in the court below to the
same remedy.
Motions to dismiss are nonenumerated motions, and they may be
filed by leave of Court in any case on the calendar before the case
is reached in the regular call of the docket, and they are entitled
to preference on Friday in each week during the sitting of the
Court, as provided in the twenty-seventh
Page 79 U. S. 140
rule, but they do not give either party any right to be heard
upon the merits of the controversy.
On the ninth of March, 1867, the appellees filed the libel in
the District Court against the appellants, as the owners of the
steamer
Eutaw, her engine, tackle, apparel, &c., in a
cause of action founded upon contract civil and maritime. By the
second article of the libel, it is alleged that the steamer
belonged to the port of New York, that she was engaged in the
coasting trade, that in the months of November and December prior
to the filing of the libel, she was in the port of Wilmington,
North Carolina, and that she was in need of supplies, repairs,
advances, and necessaries for her voyage; that the master of the
steamer applied to the libellants to make such repairs and to
furnish such supplies and advances, and that they, the libellants,
complied with the request, and that there is due to them for such
repairs, supplies, and advances the sum of four thousand dollars.
They also alleged that the repairs, supplies, and advances were
necessary and proper to render the steamer seaworthy and fit to
perform her intended voyage, and that the same were furnished on
the credit of the steamer as well as of the master and owners.
Process was served, and the first-named respondent appeared and
filed an answer in his own behalf and in behalf of the other
respondent with whom he was impleaded denying all the allegations
of the libel. Subsequent to the filing of the answer, an order was
passed referring the cause to a master to ascertain and report the
amount due to the libellants. Testimony was taken on both sides,
and the parties were heard and the master reported that there was
due to the libellants the sum of four thousand one hundred and
forty dollars and ninety-four cents for the repairs, supplies, and
advances made and furnished, as alleged in the libel. No exceptions
were taken by either party to the report of the master, and on the
ninth of May, 1868, the district court confirmed the report and
entered a final decree in favor of the libellants for that
amount.
Page 79 U. S. 141
Dissatisfied with the decree, the respondent appealed to the
circuit court, where the parties were again heard upon the same
testimony. Apparently they were heard without any new reference of
the cause and upon the general allegation of the appellant that the
decree was erroneous and that the libellants were not entitled to
the damages claimed in the libel and decree. Different conclusions,
however, were formed by the circuit judge, as he adjudged that the
decree of the district court should be affirmed with costs, and it
is from that decree that the original respondent appealed to this
Court.
Referring to the record, it appears that the decree in the
circuit court was entered on the nineteenth of March, 1870, and the
appeal was taken to this Court on the nineteenth of May following.
Such an appeal is not a supersedeas, but it cannot be dismissed,
because no question is raised or presented in the record for the
decision of this Court.
Appeals are subject to the same rules, regulations, and
restrictions as are prescribed in law in case of writs of error,
and it is well settled law that it is no sufficient cause to
dismiss a writ of error that the record does not present any
question of law for the revision of this Court, as the writ of
error when sued out under the twenty-second section of the
Judiciary Act brings up the whole record, and it is the right of
the plaintiff in error to be heard and have an opportunity to show,
if he can, that there is error in any part of the record. [
Footnote 1]
When a cause is brought here upon a writ of error sued out under
that section and all the proceedings are regular and correct, the
judgment of the circuit court must be affirmed, but the cause
cannot be dismissed although there is no question presented in the
record for revision. [
Footnote
2]
Apply that rule to the case before the Court and it is clear
that the motion must be denied, and it is equally
Page 79 U. S. 142
clear that appeals in that respect are subject to the same
rules, regulations, and restrictions as are prescribed in law in
case of writs of error. Appeals of the kind are usually regarded as
brought for delay, and it may become necessary to amend the second
article of the twenty-third rule so that ten percent damages shall
be allowed in addition to the interest provided for in the first
article of that rule.
Motion denied.
[
Footnote 1]
<|1 How. 288|>Minor v. Tillotson, 1 How. 288; 2
Stat. at Large 244.
[
Footnote 2]
<|2 Black 484|>Taylor v. Morton, 2 Black, 484;
<|20 How. 440|>Suydam v. Williamson, 20 How.
440.
