The Alijandro v. Wallace

• Decision Date: 08 May 1893
• Docket Number: 85.
• Parties: THE ALIJANDRO. v. WALLACE. THE ALIJANDRO
• Court: U.S. Court of Appeals — Ninth Circuit

56 F. 621

THE ALIJANDRO.

THE ALIJANDRO v. WALLACE.

No. 85.

United States Court of Appeals, Ninth Circuit.

May 8, 1893

Milton Andros, for appellant.

J. C Black and A. P. Black, for appellee.

Before GILBERT, Circuit Judge, and HANFORD and HAWLEY, District Judges.

HAWLEY District Judge.

The record in this case shows that an interlocutory decree was entered in favor of the appellee on May 16, 1890; that the cause was then referred to a commission to compute and ascertain the damages sustained by appellee; that on August 13, 1890, the commissioner filed his report, assessing the total amount of the damages in the sum of $2,390; that this amount included the loss of appellee's earnings during the time he was disabled from work, medical attendance medicines, nursing, and $1,000 was allowed for the pain suffering, and other consequences resulting from his injury that exceptions were taken to this report by the appellee, upon the ground that the sum of $1,000 was wholly an inadequate compensation; that on November 10, 1890, the district court sustained the exceptions, and added to said amount the further sum of $2,000, also the sum of $10, consultation fee of a physician, which had been overlooked by the commissioner; that from this decree appellant appealed to the circuit court, and on June 3, 1892, that court affirmed the decree of the district court, and entered a decree in favor of the appellee for the sum of $4,400, with interest in the sum of $478.11, and costs. From this decree the present appeal is taken.

A motion was made by appellee to dismiss the appeal on the ground that this court had no jurisdiction,--the contention being that appellant was only entitled to one appeal; that the decree having been rendered in the district court prior to the act of March 3, 1891, and, as the appeal was then pending in the circuit court, jurisdiction could not be vested in this court without impairing the jurisdiction of the circuit court, contrary to the provision of the joint resolution to provide for the organization of the circuit court of appeals, which resolution provides that 'nothing in said act shall be held or construed in any wise to impair the jurisdiction of the supreme court or any circuit court of the United States in any case now pending before it, or in respect of any case wherein the writ of error or the appeal shall have been sued out or taken to any of said courts before the first day of July, A. D. 1891.' This motion was overruled upon the ground, as then stated, that by section 6 of the act creating this court the right of appeal has been given in certain cases, including cases in admiralty, where it did not before exist; that the allowance of the appeal would not in any manner impair the jurisdiction of the court; that the right of appeal had been extended, not limited; that the joint resolution was intended to preserve the right of the circuit courts to hear appeals from the district court under section 631, Rev. St. U.S. in cases then pending; that, when the circuit court had heard and decided such cases, its decrees were subject to the provisions of the act, and were expressly made reviewable in this court; and that under the construction given to the act in Re Claasen, 140 U.S. 200, 11 S.Ct. 735, and Railroad Co. v. Amato, 1 C. C. A. 468, 49 F. 881, the right of appeal must be sustained. The same conclusion was reached by the court of appeals, fourth circuit, in Coal Co. v. The Mattano, 3 C. C. A. 325, 52 F. 877. The cause was thereafter heard upon its merits.

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