Semple v. United States

21 F. Cas. 1072

• Court: District Court, E.D. Virginia
• Decided: May 15, 1868
• Status: Published

Opinion

CHASE, Circuit Justice.

This case comes before us upon a writ of error to the district court for the district of Virginia. The proceedings in that court were by seizure and libel of information for the condemnation, under the act of July 7, 1802, of certain real estate of the plaintiff in error, situated in Elizabeth City county, within the district of Virginia.

The seizure and libel were followed by an order fixing a short day for trial, and directing the issue of monition and publication of notice according to the ordinary course of admiralty. There was no appearance, and the decree of confiscation or forfeiture after examination of witnesses, was made upon default, and the property was sold under a writ of ven-ditioni exponas.

Three points were made in argument for the plaintiff in error.

The first is that the act under which the proceedings for condemnation were had, is unconstitutional. Several cases arising under this act and that of August, 1861, of like tenor, have been considered by the supreme court. Union Ins. Co. v. U. S., 6 Wall. [73 U. S.] 763, and other cases in same volume.

In neither of these cases was this point made, either by counsel or by the court; and it is a fair conclusion that neither at the bar nor upon the bench, was the constitutionality of the act doubted.

We, at least, unless clearly satisfied that the act is unconstitutional, and satisfied also that the point passed without observation in the supreme court, are bound here by the action of that court.

We shall hold, therefore, for the present, that the act is warranted by the constitution; but shall be gratified if the question is again submitted to the supreme court, and adjudged upon direct argument and consideration.

The other point made for the plaintiff in error is, that the suit in the district court was in admiralty; whereas, being for condemnation at a seizure of land, the remedy should have been sought in the common-law side of the court.

But in Union Ins. Co. v. U. S. [supra], it was held that a proceeding for condemnation might well be according to forms used in admiralty, although it must be conformed to the course of the common law, in respect to the trial of issues of fact and exceptions to evidence; and. regularly, could only be reviewed after final judgment or decree upon writ of error.

In that ease there had been an appearance and claim, but no trial by jury and no exceptions to evidence; and the cause was brought into the supreme court by appeal.

The court took jurisdiction of the cause upon the appeal only, for the purpose of reversing the decree as irregular, and remanding the cause for further proceedings. In this case the cause is brought before us by writ of error, not by appeal; and this mode of invoking the appellate jurisdiction is peculiar to civil actions as distinguished from causes of admiralty and maritime jurisdiction. It is evident, therefore, that the plaintiff in error did not regard the proceedings below as a cause m admiralty; and be was right, for though in the form of admiralty, it was, in substance, a proceeding at common law. If it appeared from the record that an issue had been made and tried by the court without a jury, and without submission by the parties, it would be our duty to reverse the judgment or decree i-> conformity with the principles settled in Union Ins. Co. v. U. S., but nothing of this sort appears. The cause was suffered to go by default, and there can be no direction of trial by jury where no issue is made and no such trial demanded. On the contrary, it is the constant practice to render judgment of forfeiture in such cases by default, without the intervention of a jury. Conk. Prac. 668. We see, therefore, no error in the judgment or decree of the district-court, and it must be affirmed.