Jackson v. Munks

• Decision Date: 16 September 1893
• Docket Number: 174.
• Citation: 58 F. 596
• Parties: JACKSON v. MUNKS.
• Court: United States Circuit Court, District of Washington, Northern Division

58 F. 596

JACKSON v. MUNKS.

No. 174.

United States Circuit Court, D. Washington, Northern Division.

September 16, 1893

Hughes Hastings & Stedman, for respondent.

GILBERT Circuit Judge.

Charles E. Jackson filed his libel against William Munks to review the decree of the United States district court of this district rendered on the 28th day of September, 1890, in the case of William Munks, libelant, against the steamer Susie etc., alleging that the decision of the court, which in that case was rendered in favor of William Munks and against Charles E. Jackson, as surety upon the bond given by the claimant of said steamer for her release, was erroneously entered, and fraudulently obtained by the suppression of a certain deposition, taken by the libelant therein, which deposition, if read in the evidence on the trial of said cause, would have been conclusive against the right of the libelant to recover therein. The libel of review was not filed until after the end of the term of the district court at which the decree in the original suit was entered, nor until three months after the opening of the December term of 1890 of said district court. The libel of review sets forth the facts contained in the record. It alleges that upon filing the libel of William Munks against the steamer, and upon the issuance of a monition thereupon, the said C. E. Jackson, as surety for J H. Olney, the owner of the steamer, and the claimant in the original suit, signed, on June 5, 1882, a bond for the release of the steamer, and for the satisfaction of the decree of the court in said cause. The libelant alleges that after signing said bond he paid no further attention to said matter, supposing that no decree could be rendered against him without a further suit, and that he was not represented by a proctor in said original suit, and knew nothing of the decree therein until after the end of the term at which it was rendered, and his time for appealing therefrom had expired; that issue was joined upon the libel in said original proceeding, and that in 1888 said Olney died, but that fact was not known to the libelant until November, 1890; that on the 23d day of September, 1890, the said cause came on for trial, and it was decreed that the said libelant, William Munks, do have and recover of and from this libelant the sum of $671.71, and costs and disbursements, and that execution issue therefor; that at the time of said trial and of the rendering of said decree this libelant was not represented by counsel, and, for some time prior thereto, the libelant was without the state of Washington, and knew nothing of said proceedings, and did not discover until the 1st of March, 1891, that there was a good and sufficient defense to said original libel; that since the decree, execution has been issued against the libelant, but said decree remains unsatisfied.

The conceded facts in regard to the original suit are that the steamer made fast to a boom of piles in Fidalgo bay, in Washington; that the piles were about eight inches in diameter, some less, and were boomed lengthwise and across with similar piles; that the steamer at the time had a raft of logs also in tow, and the boom of piles was made fast to the logs; that the steamer made fast to the piles with a hawser which was considerably worn, the hawser being tied to the boom poles of the raft; that in performing the towage service the steamer was obliged to pass through Swinomish slough, where it met a strong current from the tide. In consequence of the opposing current, the steamer cast anchor, and made both booms fast to the shore. While in this position the hawser between the raft of logs and the piles parted, letting the latter go adrift. The boom of piles ran ashore in the slough, and the ebbing tide left the boom poles partly upon the bank and partly in the water, thus allowing the piles to escape. Probably from one-third to one-half of the piles were lost, being floated out by the ebbing tide.

It appears from the testimony that on the issues formed in the original suit the libelant therein began taking testimony on the 20th day of August, 1883, and continued taking testimony at intervals until September 17, 1887, when the testimony of William Wardell was taken; and all the testimony so taken was supposed to have been lost in the great fire in Seattle, and no further proceedings were had in said cause until the 24th day of September, 1890, when testimony was again taken of the libelant, William Munks, in his own behalf, but no testimony was taken of any other witness for the libelant, save the deposition of one witness, and no evidence whatever...