ZADIG v. AETNA INS. CO.
No. 337
Circuit Court of Appeals, Second Circuit
May 12, 1930
The Trojan was the overtaking vessel, and, under article 24 of the Pilot Rules, was bound to keep out of the way of the Cedarhurst. When the latter acceded to the passing signal, she assumed no responsibility for the Trojan‘s maneuver, and was under no obligation except to refrain from interference with the Trojan and to hold her course and speed so far as practicable. Warner Co. v. Independent Pier Co., 278 U. S. 85, 49 S. Ct. 45, 73 L. Ed. 195.
There was plenty of water on the starboard side of the Cedarhurst within which the Trojan might navigate, but, in spite of this, she crowded down on the Cedarhurst, either because of persistence in running on her usual set course irrespective of what was ahead, or because, through mere carelessness, she chose to pass nearer to the Cedarhurst than was prudent. Reeve testified that a passage by the Trojan within 50 or 60 feet of the Cedarhurst at a speed of 12 knots would set up a suction tending to bring the stems of the vessels together. But whether too close shaving or suction brought about the casualty, the Trojan was bound to keep out of the way of the overtaken vessel. In our opinion the collision arose because of her failure to do this rather than because of a sudden sheer by a heavily laden ship like the Cedarhurst such as the Trojan witnesses describe. The Trojan had no lookout and the pilot and quartermaster who were in the pilothouse observed nothing until, as they said, the Cedarhurst suddenly began to sheer when close beside them. If the story of the abrupt sheer were credible perhaps a lookout would have served no purpose, but if, as we hold, the collision arose from crowding on the course of an overtaken vessel, a vigilant lookout might well have saved the day.
In our opinion, the collision was not due to any sheer or other fault of the Cedarhurst. The Trojan neglected to keep out of the way of the Cedarhurst and to maintain a proper lookout. She ran at a high speed far too close to the vessel she was attempting to pass.
The interlocutory decree of the Hudson River Navigation Company is reversed, and the libel is dismissed. The decree dismissing the cross-libel of Steamer Freeport Corporation is reversed, and an interlocutory decree is granted to it with the usual reference to report on damages. Costs are to go to Steamer Freeport Corporation.
Putney, Twombly & Putney, of New York City (Frederic R. Sanborn, of New York City, of counsel), for appellant.
Bigham, Englar & Jones, of New York City (Arthur W. Clement and Henry J. Bogatko, both of New York City, of counsel), for appellee.
Before L. HAND, CHASE, and MACK, Circuit Judges.
PER CURIAM.
The plaintiff filed its complaint in the state court in July, 1926, the cause was removed, the defendant answered in July, 1927, and neither side noticed the case for trial. Rule 28 of the General Rules of the Southern District of New York provides that “cases which have been pending in this court for more than one year without any proceedings having been taken therein during such year may be dismissed as of course for want of prosecution by the court on its own motion at a general call of the calendar.” A general call of the calendar was ordered in January, 1929, of which notice was published in the New York Law Journal, and upon which on January 28, 1929, nobody appeared on behalf of the cause. An order was thereupon signed and filed, but never entered, which read as follows: “This cause having been called pursuant to Rule 28 of the General Rules of Practice of this Court and it appearing that no action has been taken herein during the period of one year immediately preceding the date of such call it is Ordered that the cause be, and the same hereby is, dismissed without prejudice.” The plaintiff did not learn of the order until January 2, 1930, when he
We think that the order, despite its name, was a final judgment, not an “order for judgment” within such decisions as Loflin v. Ayres, 164 F. 841 (C. C. A. 8); Dickinson v. Sunday Creek Co., 178 F. 78 (C. C. A. 4); Darling Lumber Co. v. Porter, 256 F. 455 (C. C. A. 5); Schendel v. McGee, 300 F. 273, 277 (C. C. A. 8); Amsinck & Co. v. Springfield Grocer Co., 7 F.(2d) 855 (C. C. A. 8); City and County of San Francisco v. McLaughlin, 9 F.(2d) 390 (C. C. A. 9). It assumed finally to dispose of the cause ex proprio vigore, contemplated no further action, and was like those considered in Hamilton Coal Co. v. Watts, 232 F. 832 (C. C. A. 2) and Colorado Eastern Ry. Co. v. Union Pac. R. Co., 94 F. 312 (C. C. A. 8). To be sure, in each of these there was a judgment, eo nomine, for costs, but it makes no difference what the court‘s determination be called, so that it actually disposes of the suit and leaves nothing further to be done. Nor does lack of entry affect the validity of the judgment for most purposes. Ewert v. Thompson, 281 F. 449, 453 (C. C. A. 8); Los Angeles County Bank v. Raynor, 61 Cal. 145; In re Cook, 77 Cal. 220, 17 P. 923, 19 P. 431, 1 L. R. A. 567, 11 Am. St. Rep. 267; Simmons v. Hanne, 50 Fla. 267, 39 So. 77, 7 Ann. Cas. 322; Freeman on Judgments, § 46; Black on Judgments, § 106. The only act of the court being the rendering of the judgment, in this case evidenced by a written “order,” entry is merely a ministerial duty of the clerk to perpetuate that act, though in most jurisdictions necessary to create a lien or start running the time to appeal. While we need not so decide, we see no reason therefore to question the correctness of our decision in Hamilton Coal Co. v. Watts, where there was no rule similar to Rule 5 of the Southern District of New York.
However, that rule extends the term in all cases for ninety days after “entry” of the judgment, and the order at bar never was, and probably never was intended to be, en
In the view we take, a question arises of the appealability of the order denying the motion to vacate. However, it appears to us a “final decision“; it once for all determined the plaintiff‘s rights, and left nothing further open to him but to renew the motion before another judge who in ordinary course would, and perhaps must, follow the decision of the first. Commercial Union v. Anglo-South American Bank, 10 F.(2d) 937 (C. C. A. 2). Whether Messinger v. Anderson, 225 U. S. 436, 32 S. Ct. 739, 56 L. Ed. 1152, softens the obligation does not seem to us relevant. We do not, of course, suggest that the District Court should grant the application. The delays have been long, and they may be unexcused; we only hold that the District Judge was wrong in refusing to consider the motion on the merits.
Order reversed.
On Petition for Rehearing.
PER CURIAM.
The appellee urges that it would appear from an examination of the records of the clerk of the District Court that the order of dismissal had been “entered.” The transcript on appeal contains nothing to that effect; the affidavit in opposition merely says that “an order was accordingly entered by this court.” The clerk, not the court, enters judgments and orders, and the allegation is not to be taken as equivalent to an “entry” of the order in the only sense here relevant. Our reversal is on the record before us. In saying that we do not hold that the motion should be granted, but that the District Court should “consider” it “on the merits,” we are not to be understood as forbidding an examination as to whether the order of dismissal was in fact “entered,” if that be proved by other evidence. We decline upon this appeal to consider that question by an examination of the records and of the practice of the clerk in dealing with orders of this kind. All such questions must be decided by the District Court in the first instance.
Petition for rehearing denied.