45 F. 588 | D.S.C. | 1891
Libel in personam against a wharf-owner for injury sustained by a vessel in the dock, by reason of an alleged defect therein. Exceptions are filed to the jurisdiction of the court, on the ground that the subject-matter of the suit is not within the cognizance of admiralty; and, next, that this controversy has already been determined in the state court. There is no doubt on my mind that the case is within the jurisdiction of the admiralty. The John E. Berkman, 6 Fed. Rep. 535; Sawyer v. 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 complaint set forth the same facts as are alleged in this libel; the defense made in the answer is the same made on the merits in the pleading before this court. The cause, 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 absence 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 controversy between these parties ended, so that this action will not lie?
It becomes important to ascertain if there ever was a judgment in this case. There is no paper on file resembling 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