The Francesco Feliz

25 F. 669, 1885 U.S. Dist. LEXIS 151

• Court: District Court, E.D. New York
• Decided: May 5, 1885
• Status: Published

Opinion

Benedict, J.

The first of the above-named proceedings was instituted by the master, mate, and seaman of the brig Francesco Feliz to have the amount of their wages earned on board said brig ascertained and paid out of the proceeds in the registry arising from the sale of that vessel by the marshal in pursuance of a venditioni ex-ponas, issued in an action brought against that vessel by certain salvors.

The second of the above-named proceedings was instituted by the Portuguese consul to obtain payment to him out of the proceeds of moneys advanced by him for the board of the crew of the vessel, and the expenses of returning them to their native country, where they had been shipped. »

The proceeds of the vessel being in the registry, upon the filing of these petitions, and upon motion of the petitioners, a reference was ordered to take the testimony upon the allegations of the petitioners, notice of which reference was directed to be given to all parties who had filed libels against the said brig. Upon such notice given to the proctors of the Brooklyn Sugar Refining Company, who had. filed a libel against the vessel to recover damages for breach of a contract of affreightment, among others, the reference proceeded; and the commissioner reported in respect to the claims of the master, mate, and seven seamen the amount of wages due them respectively, with the opinion that the claims were liens upon the proceeds. The amount reported due the master, and the amount reported due the mate, exceeded $50. No sum found due any seaman exceeded $50.

No answer to either of said petitions was filed, nor were any exceptions filed to the report of the commissioner, and thereupon the petitioners applied to the court upon the petitions and the testimony reported by the commissioner, and upon notice to all parties having libels against the brig, for an adjustment of the priority of respective claims pending against the vessel, fend for an order directing the payment to the petitioners out of the proceeds of the vessel of the several sums reported due by the commissioner. Upon this motion, after repeated adjournments thereof, upon the application of the Brooklyn Sugar Refining Company, various parties were heard in opposition thereto, and among others the Brooklyn Sugar Refining Company. Upon such motion, a decision¹ was thereafter announced favorable to the petitioners; and thereupon application was made by them, upon notice to the parties who had contested the motion, for a decree in accordance therewith, such application being founded upon tho proceedings, the opinion of the court, and a copy of tho decree proposed' to he entered. To the entry of the decree thus proposed all parties consented except the .Brooklyn Sugar Befining Company, for whom, however, no one appeared at the lime and place mentioned in the notice of settlement of the decree. A notice of settlement for another day was then given to the Brooklyn Sugar Befining Company for the settlement of the decree; at which time, no one appearing, and no objection having been made to the form of the decree as proposed, the decree as proposed was signed by the judge. This decree, among other things, directed the clerk to pay the 'master, mate, and seamen out of the proceeds of the brig the amounts of the wages reported due them, and omitted the words “unless an appeal be taken within ten days,” usual in decrees where tho amount awarded exceeds §50. Thereafter the costs of tho petitioners were taxed, upon notice to all the parties havihg libels against the brig, at which taxation the Brooklyn Sugar Befining Company did not appear. Thereafter, and four days after the entry of the decree, the clerk paid to the proctor for the petitioners out of the proceeds in court the amount directed by the decree; and now, after, as appears, the money had been paid over to the Portuguese consul by the proctor receiving the same, the Brooklyn Sugar Befining Company applies for an order directing the repayment into the registry of the sums so paid, upon the ground that the payment was premature, because made before the expiration of 10 days from the entry of the decree, and before the time for taking an appeal from the decree had expired.

The motion cannot be granted. So far as the decree directed the payment of the sums awarded the seamen, there was no right of appeal, for no sum exceeds §50. In respect to the other sums awarded, by omitting to object to the form of the decree, under the circumstances, the parties must be deemed to have assented to the immediate payment of the money. They must be supposed to have intended to rely upon their right to recover it back in case of reversal on appeal', or to have acted upon the belief that no right of appeal existed,— a belief not without foundation, as it seems to mo. Motion denied.