588
PEDERAL BEPOl1TER,
vol. 45.
BALL
et ale
V. TRENHOLM.
(District Oourt, D. South OaroUna. , April I, 1891.)
1.
ADMIRALTY-JURISDICTION-DBIIBCTIVE WJlARII.
A claim against a wharf-owner for iriJury sustained by a vessel in tbe dock by reason of an alleged defect therein is wIthin the jurisdiction of admiralty, and a libel in personam will lie.
2.
But where sucb an action has been brought in the state court, and a verdict rendere4 for defendant, and plaintiff's motion for new trial overruled, and a notice of appeal given, the action of the court is res adjudioata. although the formal judgment ,has" not been entered, and the the court is exhausted. An order en, teredin the circuit court after appeal to the supreme court, giving plaintiffs leaVe to discontinue their cause on payment of costs, is ooram non judice. and will not enable them to maintain a libel in a oourt of admiralty on the sa.me cause of action. DISMISSAL OIl SUIT.
RBs ADJUDICATA.
8.
, ,An order to discontinue a caq,se Cannot be entered after judgment.
. rCharles Prioleau, and Northrop « Memminger, for libelants. n Ad,miralty. .' J. Ancrum Simons, for respondent." ,,: !' SIMONTON, J. LilJel in personam' against a wharf-owner forinjury susa vessel in the dock, by reason of an alleged defect therein. tained Exceptions are filed to the jurisdiction of the court, on the ground that the subject-,ma:tterof the suit is not within the cognizance of admiralty;' and, hext,that this controversy has already been determined in the state cohrt. There is no doubt on my mind that the case is within the jurisdiction of the admiralty. The John E. Berkman, B Fed. Rep. 535; Sawyer Oakman; 7 Blatchf. 290; The other exception requires more discussion. An action was brought in the court of common pleas for Charleston, county by these libelants against this respondent. The com" plaint set forth the same facts as are alleged in this libel; the defense" made in the answer is the same made on the nierits in the pleading before this court. The'ca:use, being at issue, was tried before his honor, Judge IzLAR, and a jury. 'The verdict was for the defendant. The plaintiffs moved for a new trial on the minutes, and on an affidavit of the absencl:l of a material witness. The judge in a written decree refused the new trial, expressing his satisfaction with the verdict. Plaintiffs gave notice in writing of their intention to appeal to the supreme court. Before any other steps were taken an order of Judge IZLAR was entered in the court below, giving leave to plaintiffs to discontinue their cause on payment of costs. This order was on the written consent of the attorney for defendant. Under these circumstances, is the controveI'sy between these parties ended, so that this action will not lie? It becomes important to ascertain if there ever was a judgment in thiEl case. There is no paper on file the postea of the old practice, or the summary of verdict and costs of the new procedure, signed by the clerk and the attorney. No formal judgment could have been entered until the motion for a new trial was disposed of. Tribble v. Poore, 28
'l1.
TRENHOLM.
589
S. C. 565,6 S. E. Rep. 577. When the judge heard this motion and dis7 missed it, this was the final determination of the rights of the parties to the action so far as the .court of common pleas was concerned. Under the language of the Code of South Carolina, § 266, this is the definition of a "judgment." The failure on the part of the defendant's attorney and of the clerk to prepare a formula or to enter one in the clerk's office do not repair or affect the judgment of the court or take away its character as a judgment. In Olark v. Melton, 19 S. C. 507, SIMPSON, C. J., puts this so clearly that his words are quoted: "A judgment is the application of the law to the facts found in the case, and is the legal determi· nation of the rights of the parties before the court. * * * To. give force ahd effect to this judgment,however, it is true a formula[under the old practice] was required to be prepared and filed in the clerk's office, and to be entered in the book of abstracts of judgment. * * * It will be observed, however, that the formula did not constitute the judgment of the court, nor did the dating or signing by the clerk with his add, anything, t<;l its official character.. The judgment issues from the court, not from the attorney or the clerk. It precedes the formula, and is the authority on which the formula is prepared, but the formula constitutes no part of the judgment." He goes on, and, in effect, says, the formula is but a step in the proceeding, a pitt·t of the machinery adopted to sec'u.re to the successful party the fruits of his victory, leading up to the execution. When the decree of Judge IZLAR was filed confirming the verdict, the rights of tve parties were determined so far as the court of common pleas could determine them. Nothing more was needed. If the defendant wished to secure'fruits. of his victory, he or the clerk could enter the formula and issue execution. This was work purely ministerial. The judicial function was ended. The notiqe given by the plaintiffs of their intention to appeal, the essential initial step towards the supreme court, showed that the plaintiffs sOQght theJr remedy elsewhere than in tl1e court below. In fact this notice led the case out 01 the jurisdiction of the court of, corhmon pleas. Thenceforward it came within the jurisdiction of the supreme court. v. Charleston, 8 S. C 346; Bank v. SteUing, 32 S. C. 102, 10 S. E. Rep. 768. The order of Judge IZLARdiscontinuing the case was either cora'm non judice, 'or, if it availed at all, discontinued such proceedings as were pending, to-wit, the iritention and notice of appeal. There can be nO'doubt that a plaintiff, by consent of hi,S Itdversary, perhaps on his own motion, may discontinue his proceedings before. verdict, aQd upon such discontinuance, and on payment of costs, (ruleS!, Cir.C!;. S. C.,) he could begin again, either in the same court or any other court havingjurisdiction. In the new suitthe prior proceedings could nqt be setup agllinst· him, because there was no adjudication, a,ndrio estoppel by . To this :extent, and no further" go. the cases quoted with much learning 'and research by the prbctorf<;>rlibelants. But afterjudgmentthereclin be no right'again to litigate with the same' party: . Properly'speaking, therecllnbe no discoritlntiance. The 'nghts of the parties in the action naving been determined,' there' is
59f}
RE¥9RTJj;R,. y;ol.
45.
and nothing to. The controversy has been· The .doctrine of res,adj1fdicata is sometimes spQken of ,as" estoppel"by judgroent." , This is an unfortunate use of Wells, ReS, Adj. § 1. It is not founded on the narrow doctrine toppel.'Y!len, has once had tl;1,e opportunity of rights tribuqal,and qashad an adjudication therec:;>o, tl:1ey question with the same parties. He has had ftayin cO,urt. With reeult he himself. The demand that there be, an endofJitigation, The libel ml,lst bedi$l;nissed. But as the defendant assented to the offer for dIscontinuance; without which it would not havebeen granted, or this action brought, the cost:s of the clerk and 'marshal only will fall 00 libel-
",'
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, ',<l>£strtct Court, E.'D.'Pennsulvania. J'anuary6,189i.) The libeIlj,nt,passing dowp at night, south byeal!t, met respond, ent malrlng red lightS of each appeadng slightly off the port bow of the, miter,. respondent turned'lllightly east,. and: the libelant, when from 300 tp,4QO Yl1ordsoff, a1so"t\lrned in the same direction, Ilnd, collided. libelant IIhoiIId have assumed, when'so close to the respondent, that t.he latter had , accommodated himself to the situation, Rnd ,should have held her course, she Wall , '
COLLISIOlIl....VESIIEliSEND ON.....CHJ.NGE OPCOURSB.
9:'·Tbe respondent' failed to keep well oft from the'libelant, which, when about 300 SAME':'-VUTY TO 'REVERSE. , ,
," '
, or 400 an abl'upt tUl'll, causing tbe disappe!lrance of her light.s·. It did not. appel'lr from the in whic.h dire,ction tJ:e of.course was in' fault for not stoppmg or reversmg, even if It Was 'notcertam , that wquld have 8Voided.the coUisioll- ';.. '
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