Munks v. Jackson

• Decision Date: 04 February 1895
• Docket Number: 160.
• Citation: 66 F. 571
• Parties: MUNKS v. JACKSON.
• Court: U.S. Court of Appeals — Ninth Circuit

66 F. 571

MUNKS v. JACKSON.

No. 160.

United States Court of Appeals, Ninth Circuit.

February 4, 1895

Hastings & Stedman and James M. Epler, for appellant.

Greene & Turner, for appellee.

Before McKENNA, Circuit Judge, and HAWLEY and MORROW, District Judges.

HAWLEY District Judge.

The facts of this case, and the reasoning and conclusion of the circuit court thereon, as reported in Jackson v Munks, 58 F. 596, are hereby adopted as the basis of this opinion. The question whether the libelant was entitled to file a bill of review after the term of the district court had expired is not, perhaps, entirely free from doubt. Although the case does not show actual fraud upon the part of Munks, which is one of the grounds mentioned to sustain the bringing of such a bill (Car Co. v. Hopkins, 4 Biss. 51, Fed. Cas. No. 10,334), nor 'the highest diligence and an entire absence of just imputations of negligence' upon the part of Jackson, as stated by Mr. Justice Story in The New England, 3 Sumn. 496, 506, Fed. Cas. No. 10,151, yet the delay of Munks in not bringing the case up for trial for a period of eight years after filing his libel, and then, after the claimant Olney had died, pressing it for trial at a time when Jackson, the surety upon the bond, was known to be absent from the state, and asserting and claiming that certain testimony, which had many years previously been taken, was lost, when in truth it was not, and which, if it had been presented to the court, would have prevented the recovery of a decree in favor of Munks in the amount obtained by him, makes out such a case as to bring the question of allowing the libel for review within 'the judicial discretion of the court, guided by such rules of decision as sound principles of justice and policy dictate. ' Janvrin v. Smith, 1 Spr. 14, Fed. Cas. No. 7,220. The court did not, in our opinion, err in exercising this discretion in favor of the libelant.

Upon the merits, we are clearly of opinion that the decision of the circuit court was correct. In answer to the contention upon the part of appellant that the towboat was a common carrier, and in affirmance of the rule stated by the circuit court that 'the burden was upon William Munks to prove the negligence of the steamer,' we quote the language of the supreme court in The Webb, 14 Wall. 414:

'It must be conceded that an engagement to tow does not impose either an obligation to insure, or the liability of common carriers. The burden is always upon him who alleges the breach of such a contract to show either that there has been no attempt at performance, or that there has been negligence or unskillfulness to his injury in the performance. Unlike the case of common carriers, damage sustained by the tow does not ordinarily raise a presumption that the tug has been in fault. The contract requires no more than that he who undertakes to tow shall carry out his undertaking with that degree of caution and skill which prudent navigators usually employ in similar services.'

It is true, as subsequently stated by the court, that there may be cases in which the result is a safe criterion by which to judge of the character of the act which has caused it. But this case does not come within the exception to the rule announced by the court. Contention is made by the appellee that the territorial district court never had any jurisdiction to render any decree against him upon the ground that the bond signed by him was in form a common-law bond and is not conditioned for judgment nor for execution against the surety; that the act of March 3, 1847, 'for the reduction of the costs and expenses of proceedings in admiralty against ships and vessels' (9 Stat. 181) only authorized judgment against a surety in case of a bond received from the claimant by the marshal, and returned by him into court as the ground of his stay of process or release of the vessel; that, it being a cause in rem jurisdiction could only be obtained by an actual seizure of the vessel, or by delivery to the marshal of such a bond as is provided for in the statute, while process for her arrest was still in his hands. The record upon which this contention is based shows that the monition against the steamer Susie was issued May 5, 1882, and returned by the marshal 'without service, by request of plaintiff's attorneys. ' This return is dated May 10, 1882, but was not returned and filed with the clerk until May 16, 1882. The bond for the release of the steamer was executed May 12, 1882; was approved by the judge May 18, 1882; and filed with the clerk 'as of 5th June, 1882.' The bond is in general form a common-law bond. It is signed by H. J. Olney and C. F. Jackson. It recites the filing of the libel by Munks against the steamer Susie, and the condition of its obligation is such 'that, if the above bounden shall abide by and answer the decree of the court in such...