The Merchant

U.S. Circuit Court for the District of Southern New York

The Merchant

17 F. Cas. 36, 4 Blatchf. 105, 1857 U.S. App. LEXIS 495

CourtU.S. Circuit Court for the District of Southern New York

DecidedSeptember 25, 1857

StatusPublished

Cited by2 cases

This text of 17 F. Cas. 36 (The Merchant) is published on Counsel Stack Legal Research, covering U.S. Circuit Court for the District of Southern New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

The Merchant, 17 F. Cas. 36, 4 Blatchf. 105, 1857 U.S. App. LEXIS 495 (circtsdny 1857).

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Opinion

NELSON, Circuit Justice.

By the 39th rule of the supreme court, in admiralty, it is provided, that if, in any admiralty suit, the libellant shall not appear and prosecute Ins suit according to the course and orders of the court, he shall be deemed in default and contumacy, and the court may. upon the application of the defendant, pronounce the suit to be deserted, and the same may be dis[37]*37missed, with costs; and, hy the 40th rule, that the court may, in its discretion, upon the motion of the defendant and the payment of costs, rescind the decree in any suit in which the decree may have been against the libel-lant for contumacy and default, and grant a rehearing, at any time within ten days after the decree has been entered, the defendant submitting to such further orders and terms as the court may dii'ect. The proceedings in ■the court below, in this case, on the refusal of the proctor for the libellants to prosecute his suit, were, as I understand them, taken, substantially, in accordance with the practice prescribed by the 39th rule, and are analogous to those in a common law court, where the plaintiff is non-prossed for not prosecuting a cause there, as required by the rules and practice of that court The decree or judgment in such cases is not a final decree, and is not the subject of an appeal or writ of error, unless such a review is specially provided for by law. The remedy of the party, if he fails to procure the order of dismissal to be set aside, and the cause to be reinstated in court, is to bring a fresh suit. The order or decree of dismissal is not final, or conclusive of the subject-matter of the litigation between the parties.

In the case before me, if I should entertain the appeal and reverse the order of the court dismissing the libel, I could not remit the proceedings to the court below, and direct that court to proceed in the cause, as I possess no such power; and, if I should retain the cause, and undertake to hear it in this court, I should be usurping the jurisdiction of the district court, which has exclusive original cognizance in all such cases. It would be purely the exercise of original jurisdiction in a ease in admiralty. I am satisfied, therefore, that I have no jurisdiction in the case, and that the appeal must be dismissed.

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NELSON, Circuit Justice.

By the 39th rule of the supreme court, in admiralty, it is provided, that if, in any admiralty suit, the libellant shall not appear and prosecute Ins suit according to the course and orders of the court, he shall be deemed in default and contumacy, and the court may. upon the application of the defendant, pronounce the suit to be deserted, and the same may be dis[37]*37missed, with costs; and, hy the 40th rule, that the court may, in its discretion, upon the motion of the defendant and the payment of costs, rescind the decree in any suit in which the decree may have been against the libel-lant for contumacy and default, and grant a rehearing, at any time within ten days after the decree has been entered, the defendant submitting to such further orders and terms as the court may dii'ect. The proceedings in ■the court below, in this case, on the refusal of the proctor for the libellants to prosecute his suit, were, as I understand them, taken, substantially, in accordance with the practice prescribed by the 39th rule, and are analogous to those in a common law court, where the plaintiff is non-prossed for not prosecuting a cause there, as required by the rules and practice of that court The decree or judgment in such cases is not a final decree, and is not the subject of an appeal or writ of error, unless such a review is specially provided for by law. The remedy of the party, if he fails to procure the order of dismissal to be set aside, and the cause to be reinstated in court, is to bring a fresh suit. The order or decree of dismissal is not final, or conclusive of the subject-matter of the litigation between the parties.

In the case before me, if I should entertain the appeal and reverse the order of the court dismissing the libel, I could not remit the proceedings to the court below, and direct that court to proceed in the cause, as I possess no such power; and, if I should retain the cause, and undertake to hear it in this court, I should be usurping the jurisdiction of the district court, which has exclusive original cognizance in all such cases. It would be purely the exercise of original jurisdiction in a ease in admiralty. I am satisfied, therefore, that I have no jurisdiction in the case, and that the appeal must be dismissed.

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Bluebook (online)

17 F. Cas. 36, 4 Blatchf. 105, 1857 U.S. App. LEXIS 495, Counsel Stack Legal Research, https://law.counselstack.com/opinion/the-merchant-circtsdny-1857.

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