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§ 325. The owner, master, etc., may appear and defend such vessel.
The owner, master, agent or consignee of the steamer, vessel or boat against which the action is brought, may appear and answer, or plead to the action; and may except to the sufficiency of the sure ties on the undertaking filed on the behalf of the plaintiff, and may require sureties to justify, as in actions against individuals upon bail on arrest. J. P. § 326. Proceedings in actions under this chapter.
All proceedings in actions under the provisions of this chapter shall be conducted in the same manner as in actions against individuals, except as otherwise herein provided ; and in all proceedings subsequent to the complaint, the steamer, vessel or boat may be designated as defendant.
$ 327. After appearance, attachment may, on motion, be discharged.
After the appearance to the action of the owner, master, agent or consignees, the attachment may, on motion, be discharged in the same manner and on like terms and conditions as attachments in other cases, subject to the provisions of section three hundred and twenty-nine.
$ 328. When not discharged, such vessel, etc., may be sold at public auction ; application of the proceeds.
If the attachment be not discharged, and a judgment be recovered in the action in favor of the plaintiff, and an execution be issued thereon, the Sheriff shall sell at public auction, after publication of notice of such sale for ten days, the steamer, vessel or boat, with its tackle, apparel and furniture, or such interest therein as may be necessary, and shall apply the proceeds of sale as follows: :
1st. When the action is brought for demands other than the wages of mariners, boatmen and others employed in the service of the steamer, vessel or boat sold, to the payment of the amount of such wages, as specified in the execution ;
2d. To the payment of the judgment and costs, including his fees; and,
3d. He shall pay any balance remaining to the owner, master, agent or consignee, who may have appeared in the action ; or if there be no appearance, then into Court, subject to the claim of any party or parties legally entitled thereto..
$ 329. Mariners and others may assert their claim for wages notwithstanding prior attachment ; how enforced.
Any mariner, boatman or other person employed in the service of the steamer, vessel or boat attached, who may wish to assert his claim for wages against the same, the attachment being issued for other demands than such wages, shall file an affidavit of his claim, setting forth the amount and the particular service rendered, with the Clerk of the Court; and thereafter no attachment shall be discharged upon filing an undertaking, unless the amount of such claim, or the amount determined as provided in the next section, be covered thereby, in addition to the other requirements; and any execution issued against such steamer, vessel or boat, upon judgment recovered thereafter, shall direct the application of the proceeds of any sale : first, to the payment of the amount of such claims filed, or the amount determined, as provided in the next section, which the Clerk shall insert in the writ: and second, to the payment of the judgment and costs and Sheriff's fees; and shall direct the
payment of any balance to the owner, master, agent or consignee, who may have appeared in the action ; but if no appearance by them be made therein, it shall direct a deposit of the balance in Court.
1. The Court whose mesne or final process has made the first actual seizure of the thing must have exclusive power over its disposal, and the distribution of the fund arising therefrom; and the judgments of all other Courts, when properly authenticated and filed in the Court having custody of the fund, must be regarded as complete adjudications of the subject matter of litigation, and be entitled to distribution accordingly. Averill v. Steamer Hartford, 2 Cal. 308.
§ 330. Proof of the claim of mariners and others.
If the claim of the mariner, boatman or other person, filed with the Clerk of the Court, as provided in the last section, be not contested within five days after notice of the filing thereof by the owner, master, agent or consignee of the steamer, vessel or boat, against which the claim is filed, it shall be deemed admitted ; but if contested, the Clerk shall indorse upon the affidavit thereof a statement that it is contested, and the grounds of the contest; and shall immediately thereafter order the matter to a single referee for his determination, or he may hear the proofs and determine the matter himself. The judgment of the Clerk or referee may be reviewed by the County Judge, either in term or vacation, immediately after the same is given, and the judgment of the County Judge shall be final. On the review, the County Judge may use the minutes of the proofs taken by the Clerk or referee, or may take the proofs anew.
1. Where the master of the vessel was in possession, and the record did not disclose any other owner, the admissions of the master were admissible in evidence with the same effect as if the suit had been against the master himself. Bailey v. New World, 2 Cal. 370.
§ 331. Sheriff's notice of sale shall contain measurement, tonnage, etc.
The notice of sale published by the Sheriff shall contain a statement of the measurement and tonnage of the steamer, vessel or boat, and a general description of her condition.
§ 332. Appeals may be taken from proceedings under this chapter.
From orders and judgments under this chapter an appeal may be be taken by the owner, master, agent or consignee, on the same terms and conditions as appeals in actions against individuals.
Sec. 333. Judgments and orders may be reviewed. 334. An order made out of Court, without notice, may be
reviewed by the Judge who made it. 335. A party aggrieved may appeal in certain cases. 336. Within what time appeal may be taken. 337. Appeal shall be made by filing and serving notice
thereof. 338. The appellant shall within twenty days prepare state
ment, subject to amendment and settlement. 339. Omission to make statement or amendment according
to preceding section shall be a waiver thereof.
* STATUTES OF 1861, p. 589, CHAP. DXXII.
An Act to regulate Appeals in this State. Approved May 20th, 1861. SECTION 1. No distinction as to the mode of taking or perfecting appeals, or as to the effect of them, shall be made between cases at law and cases in equity; but the provisions of the Practice Act shall apply in the same manner to all cases of appeal..
Sec. 2. In cases tried by the Court without a jury, no judgment shall be reversed for want of a finding, or for a defective finding of the facts, unless exceptions be made in the Court below to the finding, or to the want of a tinding; and in cases of a defective finding, the particular defects shall be specifically and particularly designated; and upon failure of the Court below to remedy the alleged error, the party moving shall be entitled to his excep tions, and the same shall be settled by the Judge, as in other cases; provided, that such exceptions shall be filed in the Court within five days after the making of the finding or decision excepted to.
SEC. 3. No appeal shall be dismissed for insufficiency of the notice of appeal or undertak. ing thereon; provided, that a good and sufficient undertaking, approved by a Judge of the Supreme Court, be filed in the Supreme Court before the hearing upon motion to dismiss the appeal, and upon the paymeut of such reasonable cost as the Court may adjudge; provided, that the respondent shall not be delayed, but may move when the cause is regularly called for the disposition or dismissal of the same, if such undertaking be not given.
SEC. 4. During the progress of a caure, a party may take his bill of exceptions to the admission or exclusion of testimony, or to the rulings of the Judge on points of law, and it shall not be necessary to embody in such bill anything more than suficient facts to show the point and pertinency of the exception taken; the presiding Judge shall sign the same, as the truth of the case may be, which bill shall then become a part of the record; and a party against whom judgment is rendered may appeal from such judgment without any further statement or motion: and on such appeal. it shall only be necessary to bring to the Supreme Court the transcript of the pleadings, and the judgment, and the bill or bills of exception so taken.
SEC. 5. This act shall take effect from and after the first day of July, 1861.
Sec. 342. Statement shall be annexed to judgment roll or order
346. Appellant shall furnish requisite papers. § 333. Judgments and orilers may be reviewed.
[1854.) A judgment or order in a civil action, except when expressly made final by this act, may be reviewed as prescribed by this title, and not otherwise.
1. For definition of “judgment” and “order," see ante, ý 144, Nos. 1-9; post, ( 347 and 515.
2. See post, $$ 336, 347.
DECISIONS BEARING ON THE SUBJECT OF PRACTICE
IN THE SUPREME COURT.
3. Generally.-Questions not directly involved upon appeal, and those which are unnecessary to a judgment of affirmance or reversal, will not be considered. West v. Smith, 5 Cal. 96.
4. Errors which are im material, and do not affect the substantial rights of the parties, are unavailing on appeal, even when the subject of the exception; much less so when they are permitted without objection. Paige v. O'Niel, 12 Cal. 483.
5. Facts will not be reviewed unless a new trial was asked.-The Appellate Court will not review the facts of a case unless a new trial was asked in the Court below. Brown v. Graves, 2 Cal. 118; Smith v. Phelps, Id. 120; Griswold v. Shark, Id. 17; Ingraham v. Gildermeester, Id. 483 ; Brown v. Tolles, 7 Id. 398; Rhine v. Bogardus, 13 Id. 73; Liening v. Gould, Id. 598.
6. The findings of the jury on issues submitted to them in an equity case, if not objected to by motion for new trial, or if not set aside by the Court on its own motion, become established facts in the case, and cannot be questioned in the Supreme Court for the first time. Duff' v. Fisher, 16 Cal. 375.
7. The findings of fact in the Court below will not be reviewed on appeal, unless there was a motion for a new trial; and this, whether the case be in equity or at law, tried by a jury or by the Court. Gagliardo v. Hoberlin, 18 Cal. 394.
8. Conflicting facts the Court will not review, except, etc.This Court has often held that it would not interfere with the verdict of a jury on the ground that such verdict is against the weight of evidence, except in extraordinary cases. It is almost impossible for an Appellate Court to satisfy itself in a decision upon such matters--so much depends upon the manner, bearing, character of witnesses, and the peculiar circumstances which the transcript fails to preserve, which give value and weight to testimony. Kimball v. Gearhart, 12 Cal. 27; 10 Id. 446 ; 14 Id. 167.
9. The rule is well settled that the verdict of a jury, or the findings of a Court sitting as jury, will not be disturbed where there is a conflict of testimony. Adams v. Pugh, 7 Cal. 150.
10. The report of a referee upon conflicting testimony must be treated in the light of a verdict of a jury; and will not be disturbed in this Court upon an appeal from an order refusing to grant a new trial in the Court below. Ritchie v. Bradshaw, 5 Cal. 228; Knowles v. Joost, 13 Id. 620.
11. This Court will require a case of very palpable mistake or error to be made