THE ISE 2
| Decision Date | 13 December 1926 |
| Docket Number | No. 4949.,4949. |
| Citation | 15 F.2d 749 |
| Parties | THE I. S. E. 2. SAGLIUZZO et al. v. FRYMIER. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Loucks & Phister, of San Pedro, Cal., and C. W. Pendleton, of Los Angeles, Cal., for appellants.
Wilbur Bassett, of Los Angeles, Cal., for appellee.
Before GILBERT and RUDKIN, Circuit Judges, and NETERER, District Judge.
This is an appeal from a decree dismissing an amended libel in admiralty, after exceptions thereto had been sustained. The libel alleged, in substance, that at all times therein mentioned the libelants were seamen and seamen fishermen residing in Los Angeles, Cal.; that each and all of said libelants had been duly and regularly licensed as fishermen by the fish and game commission of the state of California, and were duly and regularly licensed as seamen and seamen fishermen, under and pursuant to the laws of the state of California and the laws of the United States of America; that one Frymier, a resident of the county of Los Angeles, state of California, was the owner of the gasoline launch I. S. E. 2; that Frymier, as such owner, employed the libelant Sagliuzzo as master of the launch, and agreed to pay him as compensation for his services as such master one-sixth of the proceeds derived from the sale of any and all fish caught by the launch during the time he was so employed; that thereafter Sagliuzzo, as such master, employed the other libelants as members of the crew of the launch and agreed to pay each of them, for his services as such member, one-sixth of the net proceeds derived from the sale of any and all fish caught by the launch during the time the libelants served thereon as seamen; that immediately thereafter, and between January 1, and January 26, 1926, the libelants served on said launch, as members of the crew thereof, and engaged in fishing operations in the Pacific Ocean adjacent to the port of Los Angeles; that during the time the libelants were so employed 200 tons of fish were taken and sold by the master for $10 per ton; that the net proceeds derived from the sale of the fish so caught, after paying all expenses of operation, was the sum of $1,500, and that under and by virtue of the agreement, wherein and whereby the libelants were employed as members of the crew, there became due to each of them the sum of $250 as and for wages, and that the launch in question was a sea-going vessel of approximately 10 tons' dead weight. The prayer was for a decree in the sum of $250 in favor of each of the libelants; the same being one-sixth of the net proceeds derived from the sale of the fish.
Fourteen exceptions in all were filed to the amended libel, but a majority of these were for uncertainty in one respect or another, and call for no special consideration. The remaining exceptions were based upon the ground that it could not be ascertained from the libel what sum was received by the master from the sale of the fish, or how the net proceeds of the sale were to be ascertained; that no accounting had ever been had or demanded of the proceeds of the sale; and that the court was without jurisdiction over the claims of the libelants, because it appeared therefrom that there has been no accounting to ascertain the amount of the net proceeds of the sale or the amounts due the several libelants. Upon sustaining the exceptions, the libelants were allowed 10 days in which to amend, with the understanding that no further amendment would be allowed. No amendments were proposed or filed within the 10 days, and a decree was thereupon entered, dismissing the libel and discharging the vessel from the lien. From this decree the libelants have appealed.
The appeal was taken June 21, 1926. On July 22, 1926, an order was signed by one of the judges of the court below, other than the judge who tried the case, extending the time for filing the apostles in this court for a period of 30 days from that date. July 26, 1926, a motion to dismiss the appeal was filed here for failure to file the apostles in this court within the time prescribed by law. That motion has been heretofore denied, but with leave to renew the motion upon the final hearing. In support of the motion to dismiss, it is contended that a judge of the District Court, and especially a District Judge other than the judge who tried the cause, has no jurisdiction to extend the time for filing the record here, in view of rule 12 of the Admiralty Rules of this court, which provides that the time may be extended by an order of a judge of this court.
But, waiving the question whether the extension was properly granted, the rule prescribing the time for docketing a case is directory, and not mandatory, and may be relaxed in the interest of justice. Harris v. Moreland Motor Truck Co. (C. C. A.) 279 F. 542. The final hearing in this court has not been delayed, and the mistake of counsel, if mistake it be, in obtaining the order of extension from the wrong judge, should not operate to his prejudice. The order heretofore made,...
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