Aiken v. Smith

• Decision Date: 05 December 1892
• Docket Number: 54.
• Citation: 54 F. 894
• Parties: AIKEN et al. v. SMITH.
• Court: U.S. Court of Appeals — Fifth Circuit

54 F. 894

AIKEN et al. v. SMITH.

No. 54.

United States Court of Appeals, Fifth Circuit.

December 5, 1892

John D Grace, for appellants.

Richard De Gray, for appellee.

Before PARDEE and McCORMICK, Circuit Judges, and LOCKE, District judge.

PARDEE Circuit Judge.

This suit was instituted in the court below by a libel brought by appellee against the steamboat Whisper, and against all persons intervening for their interest therein in a cause of subtraction of wages and damages, civil and maritime. Admiralty process having been issued and served, and the steamboat Whisper seized, the following claim was entered:

'And now comes W. E. Barre, master, who on oath states that he is master of the steamboat Whisper, and that John F. Aiken is the managing owner thereof, and deponent is lawful bailee of the owners, and prays for the release of the vessel on bond.'

Release being ordered on the said claim, a release bond was given signed by William E. Barre, master and bailee for owners of the steamboat, Whisper, with Bernard H. Menge as surety. A sworn answer was filed in the cause by John F. Aiken, styling himself 'claimant and managing owner of the steamboat Whisper. ' Upon the issues made by the libel and this answer, the cause was heard, and a decree rendered as follows:

'It is therefore ordered, adjudged, and decreed that the libelant, Charles Smith, do have and recover from the steamboat Whisper the sum of five hundred and six dollars and seventy-five cents, as follows: $6.75, amount tendered by claimant for wages due; and $500, damages,-- with legal interest from judicial demand and costs of suit. And whereas said steamboat Whisper was released from seizure and restored to her owner on giving bond with William E. Barre, as master thereof and lawful bailee for the owner thereof, with John F. Aiken, as principal, and Bernard H. Menge, as surety, it is further adjudged and decreed that the said William E. Barre, master and lawful bailee of the owner of the steamboat Whisper, principal, and Bernard H. Menge, as surety, be condemned in solido to pay the foregoing judgment, with interest at the rate of five per cent. per annum from judicial demand, and costs of suit.'

From this decree an appeal was taken to this court by John F. Aiken, J. B. Woods, Thomas K. Voorheis, E. J. Comeaux, and Walter Comeaux, styling themselves 'owners of the steamboat Whisper,' and by Bernard H. Menge, surety on the bond for the release of said steamboat Whisper, and by William Barre, master and lawful bailee of said steamboat.

Appellee moves to dismiss as follows:

'First. As to all appellants, because claimant has taken into the appeal herein other parties than those who are parties to this suit, viz. J. B. Woods, Thomas K. Voorheis, E. J. Comeaux, and Walter Comeaux, and has appealed jointly with them. Second. And, in case the above should be overruled, than he moves to dismiss the appeal herein as to said J. B. Woods, Thomas K. Voorheis, E. J. Comeaux, and Walter Comeaux, because neither of them are parties to this cause,

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