The Dode

100 F. 478 | D. Wash. | 1900

HANFORD, District Judge.

In this case, after the steamer Dodo had been taken into custody under process regularly issued, and the notice required by the rules of practice, requiring all persons claiming the said vessel, or knowing and having anything to say why the same should not be condemned and*sold, to be and appear before the court on a specified day to interpose a claim, and to make their allegations, had been given, and after the return day an order of default was taken in open court against all persons who had not theretofore intervened, and thereafter the court made an order for the sale of the vessel, and on the day that the vessel was sold by the marshal, pursuant to the order of court, on terms previously fixed by the court with the consent of all the parties then before it, J. E. Galbraith comes into the case for the first time, and files an intervening libel, without leave of the court, and without having petitioned the court to open up the default, and without showing any excuse for having failed to intervene on or before the return day. In his intervening libel he does not show that the demand of the original libelant is illegal or unjust, the purpose of his intervention being to enforce a lien which he claims for money advanced io the owners of the steamer to pay off other creditors who had liens for wages and supplies. Under the circumstances recited, it is too late for this intervener to come in and contest the validity or regularity of proceedings already taken in the case. This court has been liberal in allowing late comers to share in the proceeds of admiralty sales when it appears that no injustice will be done, and the court is not required to exercise a doubtful power. When there is a fund in court, it is the purpose of the court to distribute it among those lawfully entitled to share in it, without enforcing technical rules of practice as to the time or manner of presenting claims, hut it would be too demoralizing to allow jjarties to introduce new claims after the fund has gone beyond the control of the court. It has been ruled a number of times by this court, by the circuit court .of appeals for the Ninth circuit, and by the supreme court, that an intervener in an admiralty case, who comes in for the purpose of enforcing an independent demand in rem upon the ground that he has a lien upon the vessel, and whose appearance in the case is not entered until after the vessel has been released from custody, acquires no right against the vessel or against the sureties on a bond given for her release; and for the same reasons I must hold that, where the vessel has been delivered to a purchaser, and the purchase money applied to discharge debts allowed by the court, the vessel and the proceeds are then beyond the reach of other creditors who might have enforced liens if they had applied in time. The motion of said intervener to set aside the sale by the marshal will he denied, and said intervener’s libel will be stricken from the files.