No. 3. 1 No.3.
HOGG 17. THE PENNSY,LVANlA ANNEX
(Oircuit Oourt, E.
New 'Fork. March 8, 18&9.)
ADHIRAI.,TY-I'RAoTICE-MOTtON FOR NEW TRIAL.
'A motion for a new trial in an admiralty cause in this court comes too late if made after the term in which the,final decree was entered
. In Admiralty. On motion for new trial. 35 Fed. Rep. 560. Evarts, Clwate &: Beaman, for libelant and appellant. , , .Goodrich, Deady &: Goodrich and R. D. Benedict, for claimant and appellee.
J. In this case a ,decree dismissing the libelwas enfered on the' 20th of July, 1888. ' On the 28th of July, 1888, and same term at which the decree was entered, affidavits made by William J.Da1ton, Andrew Clemens, and Treadwell Cleveland,were presented to me, and on them I made an order that the claimant show October 1,1888, why the decree should not be vacated, and a hew trial had, 'and why the libelant should not have leave to take the testimony of Dalton and Clemens as to the facts set forth in their said affidavits, and such other and further testimony as he might be advised, for u'se oll'suchnew trial.·· Further affidavits were served by the libel.antfor use', on the motion so pending. In- response to the order the appeared, affidavits, were put in by the claimant, affidavits in I'eply by: the Hbelant, and reputting affidavits again by the The Il).otion was fully heard;byme on oral argument in December, 1888, and I have 81llcebeen furnished with full written briefs by both parties. At the close of the oral argument I distinctlyintiniated my view that the motion could not be granted. On a careful review of the case, I :Qfustill'of that' opinion.' Thie briefs! submitted to me cover notably the questions raised by the special affidavits' furnished by the libelant for' the ID()tion, hut to some extent other questions on the merits involved in the hearing which resulted in the decree. I have carefully reviewed 'the whole casEt, 'and am still onhe opinion announced by me in my deelsl'on'herein, filed July 5; (35 Fed. Rep. 56'0,) "that the libelant 'bas not established by sufficient proof the allegation of the libel that the steani-boat or ferry-boat known as the' Pennsylvania Annex Boat 'No,'3,' on the occasion mentioned ,in the libel, ran into and upon the steam.:.ship; mentioned in the libel, and then called the l Western Texas,' \i.rtd'caused damage and injury to her." . ,On the 5th of February, 1889, and after I, had been furnished with the papers and briefs on the motion above mentioned, the libelant presented to me certain affidavits, namely, that of William F. Ward, sworn
lReported by Edward G. Benedict, Esq., of the New York bar.
THE A:\:\EX :;0.
to January 2.9, 1889; that of Frederick A. Tappen, sworn to January 30,1889; that of; George Cavan, sworn to January 31,1889; and that of Treadwell Cleveland,sworn to February 4, 1889,-uponwhich I was asked to make an order that the claimant show caU!3e why the de(:ree herein should not be vacated, and a new trial be had,. and why the libelant should pot have leave to take the testimony of the said Ward and Cavan as to the facts set forth in their said affipayits, ,and such other and further testimony as he might be advised, for use on such new trial; and that the libelant have permission to serve upon the proctors for the claimant any other affidavits upon which to base said application: On the 25th of February, 1889, two other affidavits were presented to me by the libelant, as intended to be used on the last proposed Inotion, namely, that of Henry Beam, sworn to February 23, 1889, and that of Louis A. Newconib, sworn to Februarj' 23, 1889. I have marked those six affidavits as having been filed with me on the several daysahove mentioned, and direct therh'to be filed with the clerk of this court. covered?y this order,comes too late, .because It IS not made dunng the term;lll,wl1'ich the final decree was entered. It must he regarded asa new and iude'perident motion, not until February, 1889, nlore(tbfil'i six inJonths after thecJ,ose ofthe term at which the final The terms of this court are 'fixed by statute (Rev. St., 2d E<h,-§658, the first Wednesday laid down in Bronson v. Schulten, 104U. S. 410; is applicabl:e'herej: and it was. applied. by this court in a similar case,-inThe Comfort, 203 :nlatchf. 37'1:.. ' Tn Bronson Schulten the suitwas one at law, and it was 'there to' aweil-establis"hed rule" that, aftel: the term. bas ended, all final judgments and decrees of the court pass beyond its control, unless steps be taken duringthat term, by motion ,or otherwise, tl;> se,t aside, modify, or correct them; and if errors exi8t they can only,be,corrected by such proceedings by writ of error or appeal as may be llHo.wed in a court which, by law, can review the decision." This rule is equally .applicable to:suits in admiralty. The only rule Qfpractice .. jectcontail1eli in the rules in admiralty prescribed by the supreme.OO;l}rt ,of the United Statel\ is thfl,tfound in rule; 40,'whichprovidesthat in case of adecreeby default a rehearing may be granteda.t anytime within 10 days after the entry of the decree.' RUlll 88 of tberules of :practice in equity prescribed by the supreme court "N.o rehearing shall be after the teriU at which the final decree of ,the court shall have been entered and recorded, iJan appeal lies to. the sumay, be l.\dmitted at any time :preme court.. But if no appeal lies the .before the end of the next term of tile court, in the discretion of the; court." By rule 155 of the rules of the qistrict court for the Southern.district of New York it is provided that" a rehearing will not be granted ,in any matter illWhich de(,)ree has been.rendered, unl,ess application is made at t!:)e term at.wpich the decree is prono\1nced,. of Jpere is .a stay ofpr(,)ceed,ings by order of the judge," By rule, 136. I of the rules foith!" circuit court Jor .the district of j.j! provided . .' .
that iIi civile,Ruses in admiralty the rules of practice of the district court for that district !tre adopted as rules of practice in the circuit court; and by rule 21 ofth'6 rul'escii this court it is provided that in civil causes in admiralty the ttrlesof the district' court for the Southern district of New York are adopted aerules of practice in this court. The proposed order to show cause catmotbegranted, nor can the motion covered by it' be entertained.
April 6, 1889.)
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. ' At 'a'sale in admiralty proceedings. advertised to take place at the front . ,: entrance to the custom-house. the officer stood in the open door of the front " elltl\ance part ,of the time, so\tp.at persons inside 'the hallway. and outside the buildingl cQuld hear him qry the ,sale. Many. if not all. the persons at the .) .. 'sal,e Were in the hail. The froil'li (foor was closed'partof the time. About 80 persons attended. and tbel'e' were ,several bids commencing at $800. the high, est bid below the value Qfthe property. Hela, that these facts did not ,shOw the,82/,le to have been irregular, so as to require it to be set' aside. ' : ' " 'I.' BY PROCTOR., ," The sale having been llIade to the proctor of the libelant. tbe fact that it was for less than the value of ,tna property is not su:fIlcient to req\lire that h be set aside on libelant's "
On motion to set aside sale·. W. H. McDcmald, for the motion. John IVe8;, opposed.' ',;
., i NELSON, J; A petition arid ,aMompanying Ilffidl'lvits are med by George J!arrls,)ibelont, to set aside Ii Bille of the steamer Ruby, made in adtniraIty The boat was sold under the adtniralty rules, on ,theallplication of the same and other parties interested. The sale ';(rasddly advertised, and the time designated waS February 14, 1889, at :10 A.M:; and'the place fixed "at the front entratice of the United States in: the city ofSt. Paul." The bont was knocked down to for the sum of $600, he being bidder,. About"SO attended the sale, and there were BEl,veral bids commencing at $300., The officer who acted as auctioneer 'stbod10 the open door-way at the front entrance part of the time, so that inside of the hallwa)7tllld dn the outsirleof the building could hear him cry the !lale; and manybfthepersons; if the sale, were'in 'tlle 'hallway··,., dodr leading to the street was BomethriesClosed;but. :Was npt shut qy the officer having charge of the salE\. Ample opporttinity'wl1s givenfol' competition of bidders by crying oUt