44 F. 4 | D. Wash. | 1890
In this caso, a decree in favor of the libelant was rendered by the district court of the third judicial district of the territory of Washington, from which an appeal was taken to the supreme court of the territory, and everything necessary to perfect said appeal was done before the retirement of the territorial courts, consequent upon the organization of the state government, except to certify and transmit the record to the supreme court, and docket, the case therein. As I understand the different statutory provisions affecting the subject, this court is the successor of the territorial court of original jurisdiction as to all admiralty causes pending at the time the change from a territorial to a state government took place. And all such cases are to be understood as having been, by operation of law, transferred from such court of original jurisdiction to this court. And this court, in taking cognizance of them, regards them as if everything done by its predecessor had been done by this court, and its duty is to do whatever may be properly done to finish them. In other words, this court takes such cases in the condition in which the territorial district court left them, and proceeds to do whatever remains to be done to afford the parties on either side whatever relief they may be entitled to have, and to end the litigation; therefore the case came properly into this court, and in due course it should have given effect to the appeal taken by certifying and transmitting the record to the circuit court of this district, which is as to such cases the successor of the territorial supreme court, and the only court to which the cause can be taken on appeal. The record should have been sent up, and the cause docketed in the circuit court before the first day of its first term for the northern division of the district, and I consider it the fault of the proctor for the appellant, rather than of the clerk, that this was not done, for it is not claimed- that the clerk has ever refused or been unwilling to make the transcript or docket the cause, and as a matter of fact he has only delayed for want of a request to proceed. This neglect, however, has not in fact delayed the hearing or decision of the ease, for there has been no judge in attendance except the district judge, who, as judge of the territorial court, gave the decision appealed from, and who is therefore, within the spirit and reason of section 61.4 of the .Revised Statutes, debarred from again deciding the case. Such being the facts and condition of the case, the libelant now moves for leave to issue an execution upon the decree, claiming that by laches the appeal has been abandoned. I hold, however, that no actual intent to abandon the appeal is shown, and that until an opportunity to have a review of the case has been suffered to pass, abandonment of the appeal cannot be legally implied from laches. The first term of the circuit court has not yet ended; and whether the.appellant shall be denied a trial in the appellate court as a penalty for failure to have the case docketed before the beginning of the term is a question for that court to decide. No rules of practice have as yet been adopted by either the circuit court or this court, and the interruption of the proceedings in the case, incident to the change of government, has created confusion and uncertainty in the practice. In view of all the facts and circumstances proper to be con
