Waddell v. The Steamboat "Daisy" , 2 Wash. Terr. 76 ( 1881 )

Opinion by

Hoyt, Associate Justice.

Opinion on motion to dismiss.

The attorneys for the respondent, having reserved the right so to do in their brief, now move the Court to dismiss the appeal herein, for the reasons stated in their brief as follows:

1st. Ho petition for appeal, no petition for apostles and no letters dismissory, signed by the judge of the Court below, have been filed, and none are called for by the notice of appeal.

2nd. Ho appellatory libel has been filed.

3d. The appeal was not taken or perfected at the time, or at the same term, the decree was entered, or at any regular term of the Court entering said decree.

They also now urge the further point, that no monition issued out of this Court to the Court below to transmit the proceedings to this Court.

The transcript in the case shows that the appeal was from a definitive sentence, and that it was taken and allowed at the time of the entry of said sentence, and that the Court then allowed time, in which to perfect the appeal, and this was, in our opinion, such a compliance with the rules governing appeals in admiralty, as to fully meet the objections thereto raised by the first point above quoted, for we are of the opinion that no written petition, for an appeal from a definitive sentence, or for apostles is required, and that in view of the fact (as will be hereinafter stated), that no action of the appellatory Court is required to perfect the appeal, the action of the Court below, in allowing the appeal, and in granting time in which to perfect the same, was sufficient letters dismissory of the cause.

As to the second point, we are of the opinion that the rules of the Civil Law have been so far modified in this country and in this Court, by a uniform current of practice, as to make the filing of an appellatory libel in this Court unnecessary.

The appeal having been taken, and allowed at the time of sentence, and having been perfected within the time then fixed by the Court, it was sufficient in our opinion under the rules, as interpreted by .this Court, in the case of Brown, et al. v. The Steamer Zephyr, to meet the objections raised by the third point above stated.

It only remains to discuss the point now raised for the first time (the same not having been reserved in the briefs on file) as to the necessity of a monition issuing out of this court to the Court below and specially reserving the point, as to whether said objection was taken in time, we would say that we are of the opinion that no monition was necessary, as there has been a uniform practice in this Court to take jurisdiction of cases in admiralty sent up on appeal, without the intervention of such monition; and such has been the practice of the Supreme Court of the United States as to appeals from this Court. The appeal, having been perfected by the filing of a bond properly approved, and the Court having, in lieu of further apostles, directed the entire record to be sent up, was in our opinion sufficient to divest said Court of the case, and upon the filing of said record here, this court acquired jurisdiction therein.

The case is not presented, of a refusal on the part of the Court below to direct the record to be sent up, and we do not therefore now assume to decide as to what would be the correct practice in such a contingeny.

It follows from what we have said that the motion must be denied and it is so ordered.