No. 153 | 2d Cir. | May 25, 1899
It is true that a court cannot deprive a defendant of the opportunity to appear, or, after a seasonable appearance, to defend, either as a punishment, or because he may be deemed to have forfeited such -rights by any misconduct. In such case, “a sentence of a court pronounced against a party without giving him an opportunity to be heard is not a judicial determination of his rights.” Windsor v. McVeigh, 93 U.S. 274" court="SCOTUS" date_filed="1876-12-11" href="https://app.midpage.ai/document/windsor-v-mcveigh-89375?utm_source=webapp" opinion_id="89375">93 U. S. 274; McVeigh v. U. S. 11 Wall. 259" court="SCOTUS" date_filed="1871-03-18" href="https://app.midpage.ai/document/mcveigh-v-united-states-88324?utm_source=webapp" opinion_id="88324">11 Wall. 259. The power of a court, which can punish for contempt, to strike the answer of a defendant from the files and render judgment against him, because he has been guilty of an aggravated contempt of court, was exhaustively examined and was denied in Hovey v. Elliott, 167 U.S. 409" court="SCOTUS" date_filed="1897-05-24" href="https://app.midpage.ai/document/hovey-v-elliott-94722?utm_source=webapp" opinion_id="94722">167 U. S. 409, 17 Sup. Ct. 841.
In this case the order that the libel be taken pro confesso was not a punishment, but was an order made upon the default of the claimant and her sureties, and the decree was upon an ascertainment of damages after the default. This is manifest from the nature of the proceeding and of the stipulation. In a suit in admiralty in rem, the vessel, which is the offending thing, is the defendant. “The distinguishing and characteristic feature of such suit is that the vessel or thing proceeded against is itself seized and impleaded as the defendant, and is judged and sentenced accordingly.” The Moses Taylor, 4 Wall. 411" court="SCOTUS" date_filed="1867-02-18" href="https://app.midpage.ai/document/the-moses-taylor-87784?utm_source=webapp" opinion_id="87784">4 Wall. 411. Throughout the entire proceedings she is acting either in conformity with the rules of court or is in default. When the vessel, which is in the custody of the marshal, is permitted to be restored to the claimant upon his entering into a stipulation in a sum equal to the appraised value of the property, the stipulation “becomes a substitute for the thing itself, and, if judgment passes for the libelant, it is entered on the bond or stipulation, and execution issues accordingly,” and the stipulators are liable for the consequences of a default: Lane v. Townsend, Ware, 289, Fed. Cas. No. 8,054; The Nied Elwin, 1 Dod. 53. The discharge of the vessel is so absolute that it was held by Justice Nelson that the court cannot order a rearrest when she has been fairly discharged on the customary stipulation (The Union, 4 Blatchf. 90" court="None" date_filed="1857-09-15" href="https://app.midpage.ai/document/the-union-8638117?utm_source=webapp" opinion_id="8638117">4 Blatchf. 90, Fed. Cas. No. 14,346; The White Squall, 4 Blatchf. 103" court="None" date_filed="1857-09-25" href="https://app.midpage.ai/document/the-white-squall-8639958?utm_source=webapp" opinion_id="8639958">4 Blatchf. 103, Fed. Cas. No. 17,570); but the English authorities are not uniform on this subject (The Hero, Brown & L. 447; The Freedom, L. E. 3 P. C. 594). Therefore, when the vessel has been discharged, and the stipulation becomes worthless, the libelant is remediless, unless new security can be given, and the power of the district court to make a rule for the relief of libelants who are in this situation cannot be properly questioned. Thé Virgo, 13 Blatchf. 255" court="None" date_filed="1876-02-19" href="https://app.midpage.ai/document/the-virgo-8687304?utm_source=webapp" opinion_id="8687304">13 Blatchf. 255, Fed. Cas. No. 16,976; The City of Hartford, 11 F. 89" court="S.D.N.Y." date_filed="1882-03-15" href="https://app.midpage.ai/document/city-of-hartford-8122593?utm_source=webapp" opinion_id="8122593">11 Fed. 89. In pursuance of the rule, an order was made in this case, with the result that the inability of the claimant and sureties to furnish better security was admitted and she was in default. The order for the ascertainment of damages was not a punishment, but was to enable the libelant to bring to an end a proceeding in rem in which, through the default of the claimant, it had neither res nor substitute. The. undertaking of the stipulators was to answer for