ON motion to dismiss an appeal from the Circuit Court for the District of Louisiana; the case being this:
A steamer having been sold under a proceeding in rem in the admiralty, left in the registry of the court $4337.51, claimed on the one hand by Rodd and several other persons, creditors of the owners, who by one mortgage on the vessel had undertaken to secure all these creditors in a body, and on the other hand claimed by Heartt and others, mariners, furnishers of supplies, and material-men. The claim of Rodd under the mortgage was $4825, and of his co-mortgagees over (in the aggregate) $8000. The claims of the opposing mariners, furnishers of supplies, and material-men were $10,151.
The case coming before the District Court that court ordered that the fund in dispute should be paid to Rodd and the others in satisfaction of the mortgage claims. This gave Rodd, who was the largest of the mortgage creditors, $1498.99 as his pro rata share.
From this decree of the District Court the mariners, furnishers of supplies, and material-men appealed; and on the appeal, the Circuit Court, on the 3d of June, 1872, ordered that the decree of the District Court 'be avoided and reversed;' and decreed that 'the claims of the mariners, furnishers of supplies, and material-men be recognized as superior to those of the mortgage creditors and paid in preference to the latter, and that a new distribution of the proceeds be prepared by the commissioner in accordance with the principles thus laid down.'A new table of distribution having been prepared accordingly, and reported to the court, the following order was entered on the 6th of June, 1872:
'The commissioner having submitted a distribution based upon the decree heretofore made by the court, it is ordered and decreed that the balance of the proceeds of the steamer, now in the registry of this court, be distributed as follows:'
And then followed the names of the distributees and the pro rata sum awarded to each.
This decree being made, Rodd and his co-mortgagees, by one petition filed in the Circuit Court, on the 15th of June, 1872 (but one Sunday having intervened between that day and the preceding 3d of June), prayed an appeal; and on the same day, the district judge sitting in the Circuit Court, allowed it.
Mr. R. De Gray, for the motion, asked the dismissal of the appeal on three grounds:
First. That the appeal was from a decree of the Circuit Court, reversing a decree of the District Court, and was allowed by the district judge; who, though the Judiciary Act makes him a member of the Circuit Court, yet provided 'that no district judge shall give a vote in any cause of appeal . . . from his own decision.'
Second. Because no one of the claims exceeded $2000; Rodd's, which was the largest, being but $1498.99, and the Judiciary Acts giving an appeal only 'where the matter in dispute exceeds $2000.'
Third. Because the appeal was not in time to operate as a supersedeas; more than ten days, as the learned counsel alleged, having elapsed from the 3d of June, when, as he contended, the final decree was entered, till the 15th, when the appeal was allowed, and the Judiciary Act of 1789, making a writ of error (to which by an act of 1803 any appeal conforms) a supersedeas only in cases where it is served within ten days (Sundays excepted) after the decree has passed.
Mr. T. J. Semmes, contra.
The CHIEF JUSTICE delivered the opinion of the court.
Notes edit
- This was the last opinion ever delivered by Chief Justice CHASE, and the last also given in the December Term, 1872. It was given on the 1st day of May, 1873. The Chief Justice died on the following 7th.
17 Stat. at Large, 198.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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