Bowker v. United States

• Decision Date: 19 May 1902
• Docket Number: No. 247,247
• Citation: 186 U.S. 135,22 S.Ct. 802,46 L.Ed. 1090
• Parties: F. S. BOWKER, Managing Owner of Schooner William H. Davenport, Appt. , v. UNITED STATES, Owner of the Lighthouse Tender Azalea
• Court: U.S. Supreme Court

186 U.S. 135

22 S.Ct. 802

46 L.Ed. 1090

F. S. BOWKER, Managing Owner of Schooner William H. Davenport, Appt.,

v UNITED STATES, Owner of the Lighthouse Tender Azalea.

No. 247.

Argued April 30, May 1, 1902.

Decided May 19, 1902.

Messrs. G. Philip Wardner, Eugene P. Carver, Convers & Kirlin, and Carver & Blodgett for appellant.

Assistant Attorney General Beck for appellee.

Statement by Mr. Chief Justice Fuller:

The case is stated by the district court, in substance, as follows: On November 3, 1899, a libel was filed on behalf of the United States in the district court of the United States for the district of New Jersey against the schooner William H. Davenport, her tackle, apparel, and furniture, and against all persons intervening therein, in case of collision, civil and maritime, seeking to recover the sum of $5,000 damages alleged to have been sustained by the lighthouse tender Azalea in a collision with that schooner on October 2, 1899, off Cornfield Point lightship in Long Island sound. It was averred in the libel that the collision was in no way caused by the fault or negligence of those on board the lighthouse tender Azalea, but that it was solely due to the carelessness and negligence of those in charge of the schooner William H. Davenport in certain particulars stated. The libel concluded with the formal prayer that process might issue in due form of law against the schooner, her tackle, apparel, and furniture; that all persons interested might be cited to appear and answer; and that the schooner might be condemned and sold to pay libellant's claim with interest and costs; 'and that the court will otherwise right and justice administer in the premises.' Process in due form was issued against the schooner, and on November 8, 1899, the marshal filed his return certifying that on November 4 he had made due attachment of the schooner, and that the vessel was then in his custody. November 22, 1899, F. S. Bowker, managing owner, filed a claim to the schooner on behalf of her owners, a stipulation for costs and a stipulation for value, and thereupon the schooner was released from custody and restored to the possession of her owners. The claimant, Bowker, filed his answer to the libel December 11, 1899, denying that the collision was caused or contributed to by those in charge of the schooner, alleging that the collision and the damage resulting therefrom were caused wholly by the fault of the steamer Azalea and of those in charge of her, in certain particulars stated, and concluding with the prayer that the libel be dismissed with costs. December 29, 1899, Bowker, for and on behalf of himself and his co-owners, filed a cross libel against the United States seeking to recover the sum of $6,000 damages alleged to have been sustained by the schooner and by her cargo in said collision. It was alleged in the cross libel that the collision was wholly due to the negligence and fault of the steamer Azalea and of those in charge of her, the particulars being set forth, and the prayer of the cross libel asked 'that a citation, according to the course and practice of this honorable court in causes of admiralty and maritime jurisdiction, may issue to the said respondents above named, citing and admonishing them to appear and answer all and singular the matters aforesaid, and that this honorable court shall pronounce for the damages, with interest and costs, and will grant a stay of all further proceedings in the action of the said respondent brought by it in this honorable court against the schooner William H. Davenport by the filing of a libel against said schooner, on November 3, 1899, until security be given by said respondent, pursuant to the admiralty rules of the Supreme Court of the United States and the practice of this honorable court, to respond for the damages claimed in this cross libel, and that this honorable court will give to the cross libellants such other and further relief as in law and justice he may be entitled to receive, this said action being a counterclaim arising from the same cause of action for which the original libel was filed against the said William H. Davenport.'

Citation was issued and served on the United States attorney for the district, who was the proctor of record for the libellant in the original suit. The United States attorney filed a notice of motion to quash the citation, February 14, 1900, and a motion to that effect was argued by counsel. December 17, 1900, the district court filed its written decision, holding that the cross libel could not be maintained because the court had no jurisdiction to entertain the cause or to enter a decree as prayed for against the United States, whereupon and on that day the court entered a decree that the citation be quashed and that the cross libel be dismissed with costs. 105 Fed. 398. The cross libellant thereupon appealed to this court and the appeal was allowed on the question of jurisdiction. The district court made a statement of the facts, to which a copy of the record was attached, and certified five questions in respect of jurisdiction under the cross libel to this court for decision.

Mr. Chief Justice Fuller delivered the opinion of the court:

This appeal is prosecuted under the 5th section of the judiciary act of March 3, 1891 [26 Stat. at L. 826, chap. 517], providing 'that appeals or writs of error may be taken from the district courts or from the existing circuit courts direct to the Supreme Court in the following cases: In any case in which the jurisdiction of the court is in issue. In such cases the question of jurisdiction alone shall be certified to the Supreme Court from the court below for decision.'

By the 6th section the circuit court of appeals, in cases within its appellate jurisdiction, may certify to the Supreme Court 'any questions or propositions of law concerning which it desires the instruction of that court for its proper decision,' and our 37th rule requires in such cases that 'the certificate shall contain a proper statement of the facts on which such question or proposition of law arises.'

The district court has observed that rule in form, but it is under the 5th section that our jurisdiction is invoked, and, as the record accompanies the statement, we are enabled to dispose of the appeal.

It was settled, soon after the passage of the act of 1891, that cases in which the jurisdiction of the district or circuit courts was in issue could be brought to this court only after final judgment. McLish v. Roff, 141 U. S. 661, 35 L. ed. 893, 12 Sup. Ct. Rep. 118; Chicago, St. P. M. & O. R. Co. v. Roberts, 141 U. S. 690, 35 L. ed. 905, 12 Sup. Ct. Rep. 123. The subject was carefully considered in the opinion of Mr. Justice Lamar in the first of these cases, and the conclusion reached was in accordance with the general rule that a case cannot be brought to this court in parcels. Southern R. Co. v. Postal Teleg. Cable Co. 179 U. S. 641, 45 L. ed. 355, 21 Sup. Ct. Rep. 249.

The preliminary question is, therefore, whether the decree dismissing this cross libel is a final judgment within the rule upon that subject. It...