Farrell v. Campbell

8 F. Cas. 1080, 7 Blatchf. 158, 1870 U.S. App. LEXIS 1677

Opinion

NELSON, Circuit Justice.

It is admitted that "the appeal is, in form, regular. I agree that the merits were concluded by the default, and cannot be heard over again in this court. That would be hearing an original case, of which this court has no jurisdiction. But the respondent appeared before the commissioner and contested the damages; and, although he took no exception to the report, and will not be able to avail himself of any errors in the same, jet I am not prepared to say that the proper remedy of the libellant is by a motion to •dismiss. The case stands on the footing ■of an appeal in admiralty, where the merits have been contested, and a decree has “been entered for the libellant, and an appeal has been taken. Although no errors may "have been committed by the court below, and, on a motion to dismiss, this court would so hold, such a remedy could not be applied. The case must be heard in the usual way in which appeals are heard, upon a call of the •calendar. In the present case, the respondent had a right to appeal; and to review the •decree as to the question of damages, and, hence, it must be heard in the usual way. The motion is denied, but without costs.