# Merrill v. Petty

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United States Supreme Court
83 U.S. 338
Merrill v. Petty
On motion to dismiss an appeal from the Circuit Court for the Southern District of New York, the case was thus:
A schooner (the Mary Eveline) sailing down Hell Gate (towards New York), came into collision with a sloop (the Ethan Allen) sailing up (towards Connecticut), and sunk her. The owners of each vessel blamed the officers and crew of the other, and sought respectively relief in admiralty. The owners of the sloop which had been sunk, accordingly filed a libel, in rem, against the schooner in the Southern District of New York, claiming $3489; while there being no res for the owners of the schooner to proceed against-the sloop being at the bottom of the East River-the owners of the schooner were obliged to proceed personally against the owners of the sloop. This proceeding, which was for $2100 damages, they instituted in the Eastern District of New York; the suit of Petty v. Merrill.
Owing to the docket in the Eastern District being lighter than that in the Southern, the personal proceeding was reached first, when, as was said in one of the briefs in the case, and not denied in the other (though the fact thus alleged, and not denied, did not appear in the record), both cases by consent of counsel were heard together, on the same facts and the same proofs, without however any attempt to consolidate, in form, the two proceedings, or to transfer the proceeding in the Southern District into the Eastern one. However heard, the result of the matter was that the libel in rem, against the schooner (the proceeding in the Southern District), was dismissed in that district, while in the personal proceeding (that in the Eastern District) the owners of the sloop were there decreed guilty in $1792.84. Decrees were entered in the respective District Courts, accordingly. From both these decrees the owners of the sloop appealed to the respective Circuit Courts of the Southern and Eastern Districts.
When the cases got to the respective Circuit Courts, the order of priority which had happened in the District Courts was reversed, and in the Circuit Courts the proceeding in rem-the one against the schooner (the case of The Mary Eveline)-was first called. There again-more or less of necessity-the merits of both cases were again heard on the one appeal; and the Circuit Court for the Southern District was-as the District Courts in both had been before-of the opinion that the fault was with the sloop. It accordingly affirmed the decree in its own District Court; that is to say, it dismissed the libel.
When the appeal from the District Court of the Eastern District in the personal proceeding (Petty v. Merrill) came up to be heard in the Circuit Court for that district, the Circuit Court, deeming itself concluded by the decree in the proceeding in rem, in the Circuit Court for the Southern District, did not hear the merits anew; but examining the matter of damages, and reducing these to the extent of $500, entered a final decree for $1292.84.
From both the decrees-the one in the Southern Circuit, The Mary Eveline, and that in the Eastern, Petty v. Merrill-the owner of the sloop, Merrill, appealed.
The present motion to dismiss was in the appeal in the personal proceeding, that from the Eastern District; and was made on the ground that the amount did not exceed the sum of $2000, and, therefore, that no appeal lay.
The reader will of course remember that by the 22d section of the Judiciary Act, the jurisdiction of this court would attach only
'Where the matter in dispute exceeds the sum or value of $2000, exclusive of costs.'
Mr. F. A. Wilcox, in support of the motion:
When judgment is obtained by a plaintiff or libellant the amount in dispute is the amount of the judgment, and that decides the question of the right to appeal. Here the judgment appealed from is less than $2000; it is but $1292.84.
Mr. R. H. Huntley, contra, and against the dismissal.
1. The libel in this case is in the nature of a cross-libel. Both actions are brought to recover damages for the same collision; the facts and the witnesses are the same; the question to be determined is the same, viz., 'Which was the faulty vessel in the collision?' and both causes were tried together, and the merits of the collision in both have been argued as one.
2. The matter in dispute means the matter for which suit is brought, on which issue is joined, and in relation to which jurors are called and witnesses examined.
3. In this case the amount in dispute is found by adding together $3489, the amount of libellant's claim in the cause of The Mary Eveline, the libel in rem, and $1292.84, the amount decreed by the Circuit Court to the libellants in the personal proceeding, the cause of Petty v. Merrill, making in all the sum of $4781.84.
4. No case can be cited, where a cross-libel had been filed and the damages litigated were over $2000, in which the court denied jurisdiction.
5. If this court decides that it has discretion to entertain this motion, then the proper exercise of that discretion will he to postpone the decision of this motion until the hearing of The Mary Eveline, the proceeding in rem.
Reply: Several claims, although the same defendant may have to pay them, cannot be added to make jurisdiction, although united in the same suit.
Mr. Justice CLIFFORD delivered the opinion of the court.

## Notes

* ↑ This happened because in the decree in the personal proceeding the matter had been referred to a master to assess damages; this delaying the appeal in the Eastern District.
* ↑ Phillips's Practice, 74.
* ↑ Lee v. Watson, 1 Wallace, 337.
* ↑ Rich v. Lambert, 12 Howard, 352; Oliver v. Alexander, 6 Peters, 143.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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