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THE EUTAW, 79 U. S. 136 (1870)

U.S. Supreme Court

The Eutaw, 79 U.S. 12 Wall. 136 136 (1870)

The Eutaw

79 U.S. (12 Wall.) 136


When a case is within the jurisdiction of the court and there has been no defect in removing it from the subordinate court to this, the Court will not dismiss the case on motion made out of the regular call of the docket.

In March, 1867, Harris, Howell & Co. libeled the steamer Eutaw in the district court at New York for repairs, supplies, advances, and labor and services to the vessel at Wilmington, N.C. The answer denied generally the allegations of the libel. A reference was made by consent to a master to ascertain and report the amount due, "the same proof of the payment and propriety of payment of bills to be made as if before the court." The master, after admissions or proofs heard, found $4,140.94, one item of this sum being $1000 for "commissions at 2 1/2 percent," and this item being allowed on an allegation of a custom of maritime countries, and of which, as prevalent at Wilmington, specific proofs were given or attempted in the shape of affidavits from commission merchants of that place, and otherwise in more formal shape. This item, unlike most of the charges, was apparently not admitted, though it was not attempted specifically to be disproved, it being left to be judged of on the record and the law. The respondents not excepting, so far as the record seemed to show, to this item of $1,000, or to any other item found in the report, nor moving any correction nor objecting to confirmation, the report was confirmed in May, 1868, by the district court. From that decree the respondents appealed

Page 79 U. S. 137

in about two years afterwards (March 19, 1870), to the circuit court, assigning error in a general allegation "that the said decree is erroneous inasmuch as the said libellants were not entitled to the damages claimed in the premises," and in the prayer for an appeal stating that on the appeal the appellant "intended to make new allegations and introduce the same and new and further proofs." In the circuit court, no new allegations being made of record nor further proofs introduced, the case was argued and taken into advisement. As was said in the briefs of one side and not contradicted in those of the other, the court on one hearing (before Nelson, J.) set aside the report or decree, though afterwards, on reargument (before Woodruff, J.) affirmed it. Nothing of this difference of view between the judges appeared on the record.

From this decree, made March 19, 1870, the case was brought here by appeal two months afterwards and now stood No. 403, a number quite far on upon the list, and making the case, if left to be heard in ordinary course, not likely to be reached for a considerable time.

The 23d rule of this Court declares:

"In all cases where a writ of error shall delay the proceedings on the judgment of the inferior court and shall appear to have been sued out merely for delay, damages shall be awarded at the rate of 10 per centum per annum on the amount of the judgment, and the said damages shall be calculated from the date of the judgment in the court below until the money is paid. "

Page 79 U. S. 139

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