The Stonington

• Decision Date: 07 July 1885
• Citation: 25 F. 621
• Parties: THE STONINGTON and THE WM. H. PAYNE. [1]
• Court: U.S. District Court — Eastern District of New York

25 F. 621

THE STONINGTON and THE WM. H. PAYNE. ^[1]

United States Circuit Court, E.D. New York.

July 7, 1885

Jas K. Hill, Wing & Shoudy, for libelant, the Lehigh Coal &amp navigation co.

Miller Peckham & Dixon, for the Stonington.

Carpenter & Mosher, for the Wm. H. Payne.

BLATCHFORD Justice.

In this case the claimants of two vessels libeled put in separate answers. At the trial the libelant produced two witnesses. The claimants put in no testimony. There was a decree for the libelant against both vessels. The claimants of both appealed to this court. The petition of appeal on behalf of the Payne states that on the appeal her claimant 'intends to seek a new decision on the law and facts, and to have said cause heard anew in the circuit court on the pleadings and proofs in the district court, and other proofs to be introduced in the said circuit court. ' The petition of appeal on behalf of the Stonington states that on the appeal her claimant intends only 'to have the said cause heard anew on the same pleadings and the same proofs, and such other proofs and testimony as may be offered. ' Rule 4 of this court (rule 119 of the circuit court for the Southern district of New York) provides that the written appeal shall 'state whether it is intended on the appeal to make new allegations, to pray different relief, or to seek a new decision on the facts; and the appellants shall be concluded in this behalf by the appeal filed. ' Rule 15 of this court (rule 130 of the circuit court for the Southern district of New York) is as follows:

'If the appellee shall have any cause to show why new allegations or proofs should not be offered or new relief prayed on the appeal, he shall give four days' notice thereof, and serve a copy of the affidavit containing the cause intended to be shown; and such cause shall be shown within the two first days of the term; otherwise, the appeal shall be allowed according to its terms.'

The final decree in the district court was entered March 18 1885. The petition of appeal in the case of the Payne was filed March 28, 1885, and that in the case of the Stonington, April 6, 1885. On May 16, 1885, the depositions of five witnesses on the part of the Payne were taken in this court, on notice, two of them being cross-examined on the part of the libelant. Before the examination commenced, the libelant entered on the record an objection to the taking of any testimony on the part of the Payne, on the ground that no testimony was taken on her behalf in the district court, 'although the witnesses not produced were present, or, if not, were procurable, and might have been examined then. ' It is not shown that any one of these five witnesses was present at the trial in the district court, or that his testimony could have been procured for that trial. On May 21, 23, and 29, 1885, the depositions of six witnesses on the part of the Stonington were taken in this court on notice, five of them being cross-examined on the part of the libelant. Before the examination commenced,...