Martin v. The Bud
| Citation | 172 F.2d 295 |
| Decision Date | 04 February 1949 |
| Docket Number | No. 12072.,12072. |
| Parties | MARTIN v. THE BUD. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Gladstein, Andersen, Resner & Sawyer and Herbert Resner, all of San Francisco, Cal., for appellant.
Derby, Sharp, Quinby & Tweedt and Stanley J. Cook, all of San Francisco, Cal., for appellee.
Before MATHEWS, HEALY and BONE, Circuit Judges.
On August 8, 1947, appellant, James G. Martin, filed in the United States District Court for the Northern District of California what purported to be and was, in form, a libel in rem and in personam, naming as respondents the American fishing vessel Bud, John Doe, Richard Roe, Jane Doe and First Doe. The libel stated that appellant was ignorant of the true names of the respondents called John Doe, Richard Roe, Jane Doe, and First Doe and prayed that it be amended by inserting their true names when ascertained. That was never done. The libel did not at any time state the true name of any respondent except the Bud.
Process (a monition and a warrant of arrest)1 issued on August 8, 1947. Thereupon the Bud, being then in the Northern District of California, was arrested by and taken into the custody of the marshal of that district. There was no arrest of, nor any service of process on, nor any attachment of the goods of, John Doe, Richard Roe, Jane Doe or First Doe.
On August 14, 1947, appellant and Angel Soriano, claimant of the Bud, filed with the clerk of the District Court a stipulation signed by their proctors on August 13, 1947, reading as follows:
On August 15, 1947, as claimant of the Bud, Soriano filed on its behalf an answer to the libel and a petition to bring in, as respondents, the American fishing vessel Tryphena C and William Burton.3 Not being a respondent, Soriano did not file an answer as such. No answer was filed nor any appearance made by or on behalf of John Doe, Richard Roe, Jane Doe or First Doe.
A trial was had on January 13 and 14, 1948. On January 16, 1948, a decree was entered dismissing the petition to bring in the Tryphena C and Burton. From that decree no appeal was taken.
The decree of January 16, 1948, left undetermined the issues raised by the answer filed on behalf of the Bud. As to these, an opinion was filed on May 12, 1948.4 Findings of fact and conclusions of law were stated, and on June 7, 1948, a final decree was entered dismissing the libel and directing that the Bud "be forthwith released from custody and restored to the claimant, Angel Soriano." From that decree this appeal was taken on July 16, 1948.
No supersedeas bond was filed, nor was any stay of execution obtained. Having been released from the marshal's custody, the Bud was removed from the Northern District of California and has at no time since such removal been in that district. Therefore claimant Soriano has moved to dismiss the appeal as being moot and for lack of jurisdiction. The motion is well founded.5
There is no merit in the suggestion that the Bud's removal from the Northern District of California violated the stipulation of August 13, 1947, whereby claimant Soriano agreed not to make any effort to remove it "until the final determination of the cause." The decree of June 7, 1948, here appealed from, was such a determination. The Bud was not removed until more than 10 days after the entry of that decree. Its removal was not fraudulent or illegal. Hence The Rio Grande, 23 Wall. 458, 23 L.Ed. 158, cited by appellant, is not in point here.
There is no merit in the suggestion that the...
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Stevedoring Services of America v. Ancora Transport, N.V., s. 87-4129
...to the appellant. Canal Steel, 48 F.2d at 213. The rule in Canal Steel was first adopted by the Ninth Circuit in Martin v. The Bud, 172 F.2d 295, 296 (9th Cir.1949). There, the court stated the case was moot because the res was released and "[n]o supersedeas bond was filed, nor was any stay......
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Stevedoring Services of America v. Ancora Transport, N.V.
...case was moot because Canal Steel, 48 F.2d at 213. The rule in Canal Steel was first adopted by the Ninth Circuit in Martin v. The Bud, 172 F.2d 295, 296 (9th Cir.1949). There, the court stated that jurisdiction was lacking because the res was released and "[n]o supersedeas bond was filed, ......
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United States v. Marunaka Maru No. 88, A 81-330 Civil.
...YAKA, 307 F.2d 203, 204 (3rd Cir.1962), rev'd on other grounds, 373 U.S. 410, 83 S.Ct. 1349, 10 L.Ed.2d 448 (1963); Martin v. THE BUD, 172 F.2d 295, 296 (9th Cir.1949); Hooper v. Kunkler, 1 F.2d 846, 847 (9th Cir.1924); THE WILLAMETTE, 70 F. 874 (9th Cir.1895); Munks v. Jackson, 66 F. 571, ......
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Bank of New Orleans & Trust Co. v. Marine Credit Corp.
...Cir. 1975); American Bank of Wage Claims v. Registry of District Court of Guam, 431 F.2d 1215, 1218-19 (9th Cir. 1970); Martin v. Bud, 172 F.2d 295, 296 (9th Cir. 1949). See also Rules C(2), E(3) (a), Supplemental Rules, F.R.Civ.P. Though Marine's motion to intervene requested leave to asse......