Bismarck weekly tribune. [volume] (Bismarck, Dakota [N.D.]) 1884-1943, 1895-05-24
LEH
B!R}IA.Jl1HWAl7E wins.
The Long Contested Steamer Eclipse
Case Again Decided in the
Supreme Court.
The Order Sustaining the Demurrer
in the District Court is
Reversed Above.
The Case Now Involves the Sum Of
Nearly ga, 0O0-various
News Items.

From Saturday q Daily.]
A Celebrated Case.
The supreme court filed another de-
sion in the now famous Braithwaite case
Friday morning. The decision is in favor
of the appellant, with syllabus as fol-
lows:
A judgment i n an action in admiralty
in the district court Of the territory Of
Dakota brought to try the question Of
title to and the right to the possession
OF 9 steamboat, adjudged that the mar
ehal had without an order Of court de.
llAered the vessel to the intervenors in
the action; that the claimant was en-
titled to the possession thereof, that the
libel and the petition of Intervention be
dismissed with costs and that. the mar
shall deliver possession Of the boat to
the claimant. Held, that this was in
legal effect q judgment for the delivery
by the i%ntervenors to the claimant Of
personal property within the provisions
OF section 4l6 OF the code of civil pro-
ceedure under the revision Of 1887 1.-THE
law in force when the appeal from the
judgment was taken) requiring the ap.
pellant to give in addition to a cost bond
astay proceedings,
Also, held, that this section related to
appeals from judgments in admiralty
actions the district court of the territory
being vested by congress with jurisdic-
ton OF such cases and appeals from
judgments therein being declared by
congress- to be governed by the practice
regulating appeals in other cases IN such
territory.
Accordingly, held, that a stay bond
given on appeal from the Judgment
above described is valid as q statutory
supersedeas bond.
Such bond having been given for the
express purpose of obtaining q stay and
having been accepted by the respondent
and he having taken no steps to enforce
the judgment in his favor pending the
appeal and the bond being in terms a
stay bond, the obligors therein cannot
after atirmance OF the judgment by the
appellate court interpose the defense
that the court had not fixed the amount
thereof as provided by section 416.
a cost bond on appeal merely secures
the costs and damages awarded on the
appeal and not the costs of the trial
court.
In it's opinion, the supreme court
says:
Although the steamer Eclipse has for
years lain at the bottom of the Missouri
river the litigation connected with her
shows nc sign of decadence. 4 Oak.
218; on appeal 1876 q. s. 500; 1 N. D. 466;
l M 1852 N. D. 81; 3 n. D. 365. In
this case Capt. Braithwaite is seeking to
recover damages for breach of an under.
taking given by defendants on appeal
from the district court to the supreme
court of the territory of Dakota from
Judgment rendered in q proceeding in
admiralty instituted to try his title to
and right to the possession of this vessel.
The questions OF law, which are here at
issue arise on demurrer to the plaintiffs
complaint. The trial court sustained
the demurrer. The plaintiff has appeal.
ed. It is obvious from the complaint
that the undertaking was given as q
cost bond and also for the purpose OF
securing a stay Of proceedings under the
Judgment appealed from pending the ap.
peal.
The plaintiff successfully indicated
his light to the possession Of the steam
or Eclipse through the entire course of
the action in an admiralty, obtaining q
Judgment in the district court which was
affirmed by the supreme court of the ter.
ritory and finally by the supreme court
of the United States. The Justice Of the
case is palpably with him, it is a source
OF great satisfaction to the court that we
are able under the law to recognize and
uphold the justice of his claim.
The order OF the district court Of
Burleigh county is reversed and the trial
court is directed to enter an order over
ruling the demurrer.
The case is one which has been fought
in the courts for years, until it involves
now about the sun of $4,000. Fifteen
years ago, Captain Braithwalte purchas
ed the steamer Eclipse, in connection
with Pittsburg parties, he having invest
ed $4,000, and they about $4,000. HI
ran the boat one year, and at the begin
ming Of another season, they desired tt
sell. He demurred to this proposition
and they took forcible possession Of the
boat, dispossessing him, and sold tht
boat. He brought suit to recover pos
session, and they gave bonds in $4,000
for an appeal of the case. The boat
cn11, 800. :z..-E-C.A.E - 4