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MERRILL V. PETTY, 83 U. S. 338 (1872)

U.S. Supreme Court

Merrill v. Petty, 83 U.S. 16 Wall. 338 338 (1872)

Merrill v. Petty

83 U.S. (16 Wall.) 338


An appeal on a libel in personam for a collision by the owners of a schooner against the owners of a sloop that had been sunk in the collision dismissed, the decree having been for $1,292.84, and therefore "not exceeding the sum or value of $2,000." The fact that prior to this libel in personam, the owners of the sloop had filed in another district a libel in rem against the schooner, laying their damages at $4,781.84, and that in the district and circuit courts below, both cases might have been heard as one (a fact asserted by counsel but not apparent in the record),

Page 83 U. S. 339

held not to affect the matter, the cases never having been brought into the same district or circuit nor in any manner consolidated.

A schooner (the Mary Eveline) sailing down Hell Gate (towards New York), came into collision with a sloop (the Ethan Allen) sailing up (towards Connecticut), and sank her. The owners of each vessel blamed the officers and crew of the other, and sought respectively relief in admiralty. The owners of the sloop which had been sunk accordingly filed a libel in rem against the schooner in the Southern District of New York, claiming $3,489, while, there being no res for the owners of the schooner to proceed against -- the sloop being at the bottom of the East River -- the owners of the schooner were obliged to proceed personally against the owners of the sloop. This proceeding, which was for $2,100 damages, they instituted in the Eastern District of New York, the suit of Petty v. Merrill.

Owing to the docket in the Eastern District being lighter than that in the Southern, the personal proceeding was reached first, when, as was said in one of the briefs in the case and not denied in the other (though the fact thus alleged and not denied did not appear in the record), both cases by consent of counsel were heard together on the same facts and the same proofs, without, however, any attempt to consolidate in form the two proceedings or to transfer the proceeding in the Southern District into the Eastern one. However heard, the result of the matter was that the libel in rem, against the schooner (the proceeding in the Southern District), was dismissed in that district, while in the personal proceeding (that in the Eastern District) the owners of the sloop were there decreed guilty in $1,792.84. Decrees were entered in the respective district courts accordingly. From both these decrees the owners of the sloop appealed to the respective circuit courts of the Southern and Eastern Districts.

When the cases got to the respective circuit courts, the

Page 83 U. S. 340

order of priority which had happened in the district courts was reversed, and in the circuit courts the proceeding in rem -- the one against the schooner -- the case of The Mary Eveline -- was first called. [Footnote 1] There again -- more or less of necessity -- the merits of both cases were again heard on the one appeal; and the Circuit Court for the Southern District was -- as the district courts in both had been before -- of the opinion that the fault was with the sloop. It accordingly affirmed the decree in its own district court; that is to say, it dismissed the libel.

When the appeal from the District Court of the Eastern District in the personal proceeding (Petty v. Merrill) came up to be heard in the circuit court for that district, the circuit court, deeming itself concluded by the decree in the proceeding in rem, in the Circuit Court for the Southern District, did not hear the merits anew; but, examining the matter of damages and reducing these to the extent of $500, entered a final decree for $1,292.84.

From both the decrees -- the one in the Southern Circuit, The Mary Eveline, and that in the Eastern, Petty v. Merrill -- the owner of the sloop Merrill appealed.

The present motion to dismiss was in the appeal in the personal proceeding, that from the Eastern District; and was made on the ground that the amount did not exceed the sum of $2000, and therefore that no appeal lay.

The reader will of course remember that by the 22d section of the Judiciary Act, the jurisdiction of this Court would attach only

"Where the matter in dispute exceeds the sum or value of $2,000, exclusive of costs. "

Page 83 U. S. 341

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