The Orient

12 F. 158, 1881 U.S. App. LEXIS 2626

• Court: U.S. Circuit Court for the District of Southern New York
• Decided: August 18, 1881
• Status: Published

Opinion

Blatchford, G. J.

The stipulation of November 1, 1879, was that the intervenors should “pay all costs and expenses which shall be awarded against them by the final decree of this court, or, upon appeal, by the appellate court.” The final decree of November 29, 1879, in the district court, gave a recovery for $749.68 to the libel-lants against the steam-boat Orient, which amount included certain costs, taxed in favor of the libellants at $127.20, (that amount including fees of proctor, clerk, and commissioner,) and the fees of the marshal, taxed at $251.49; but said final decree awarded no costs or expenses against said intervenors. It ordered that out of the moneys in court the clerk first pay the cost of the officers’ court, and then pay the balance on account of the amounts decreed to the libel-lants. On the face of it it contemplated a deficiency by using the words “on account of.” It was known to all parties that the proceeds in court were $615, and that there must be a deficiency of $144.38; yet there was no award for costs, or for any part or the whole of the deficiency, against the intervenors. The decree must be taken to have been made with knowledge of its provisions and effect. It was not appealed from, and was acquiesced in. If it was erroneous or inadvertent the libellants should have had it corrected by tho district court. There is nothing purporting to correct it, or to award any costs against the intervenors. The order of March 29, 1880, and the decree and summary judgment of May 17, 1880, cannot be construed as making such correction or awarding any such costs.

The appellants are entitled to a deceee reversing the said decree, and summary judgment of May 17, 1880, with costs in both courts, to bo taxed against the libellants.