Bismarck weekly tribune. [volume] (Bismarck, Dakota [N.D.]) 1884-1943, 1895-11-01
HE WINS AGAIN.
The Braithwaite Steamboat Suit
Again Decided In His Favor By
The Supreme Court.
Another Important and Interesting
Decision in the Markuson Case
From Valley City.
Braitl,wait. Wins Agai in

LIE supreme court mas handed down
another decision in the Braithwaite case.
This suit has become so we'll known in
it's meanderings through the courts Of
the state and the United States, that q
resume of the points in the suit is un-
necessary. At the last sitting of the
supreme court here, the case was argued
on an appeal from Judge Winchester, and
a decision was handed |down in favor of
Braithwalte. A rehearing was then grant
ed, the question being as to whether suit
on an admiralty bond could be brought
in a state court. The case was argued
at Grand Forks, and the decision handed
down today is again in favor of Braith-
waite. It will probably be appealed
again to the United States supreme
court.
The syllabus Of the decision is as fol-
lows:
A libel in a possessory action in rem
was filed in the district court of the ter
ritory of Dakota sitting as a court of
admiralty. The plaintiff herein de-
Tended the action as claimant OF the YES
sci and was successful. On appeal by
the llbellants to the territorial supreme
court the undertaking sued on was given
to secure a stay of proceedings. The
judgment of the district court being af-
firmed plaintiff who was respondent on
the appeal brought suit on such under.
taking. Held, That the action was not
an integral part Of the original admiral
ty case and that therefore the federal
district court for the district of North
Dakota, as the successor in admiralty
cases of the territorial district court, did
not have exclusive jurisdiction of the
proceedings to enforce such undertaking
although the plaintiff might have Sc
cured in that court in the very action in
which the undertaking was given a sum
mary Judgment against the persons who
signed such undertaking, the defend
ants herein, bat that an action on such
undertaking would lie in the district
court of this state.
Also, held, that this action on the I'M
%dertaking is not a proceeding to enforce
the Judgment IN the admiralty case
within the meaning of the rule that the
court, whether state or federal, in which
a Judgment is rendered has exclusive
jurisdiction to enforce it.
Also, held, that no principle of comfy
requires the state courts to refuse to
take cognizance of the case. 1t is no
objection to the jurisdiction of the court
in entertaining a common law action of
debt that the plaintiff has in another
tribunal a remedy more speedy and sim
pie in it's character and equally effica-
cious. Especially should this be the
| .Jo0kvSpo - rxyh ~ T. 11~o~ @1 l,~o ~ -o--ut
to the summary remedy would dpreive
him of the right to a trial by jury.
The judgment from which the appeal
claimant was entitled to possession and
ordered the marshal who was legally in
custody of the property to deliver it to
him. Held, that this was not a judg-
ment directing the delivery of personal
property within the meaning of Sec. 4l6
Of the code of civil procedure under re-
vision of 1877 (Sec. 1921 Comp. Laws
assuming such statute to be applicable
TO admiralty cases and that therefore on
this assumption the appellants could
have secured a stay of proceedings on
the giving of a mere cost bond. (Sec.
422 of the code of civil procedure of the
revision of 1879 The undertaking
therefore SO far as it was more than a
mere cost undertaking was without con
sideration and void as a statutory under
taking.
But, held, that the practice on appeal
in the admiralty case to the territorial
supreme court was not regulated by the
territorial statutes but by the rules and
usages of courts of admiralty; and; that
as the appellants had no absolute right
unde: such rules and usages to perfect
an appeal to the territorial, supreme court
and secure a stay of execution pending
such appeal on the giving of a mere cost
bond and as the respondent in the ap.
peal did in fact treat the undertaking ae
emitting the appellants to a stay by
abstaining pending the appeal from all
attempts to enforce the judgment in his
favor. Held. further. that the under
taking was valid as a common law obi
cation supported by a sufficient consid.
GRAFTON.
1t is no defense to an action on a stat
tutory undertaking on appeal that the
court has not fixed the amount thereof
under the statute. Such provision is for
the benefit OF the respondent and if he
waive it and treat the undertaking as
sufficient to accomplish the purpose for
which it was given, the undertaking may
be enforced by him the same as il the
statute had been complied with.
A cost bond on appeal secures merely
the costs and damages on appeal and
not the costs in the trial court.
Appeal from the district court of Bur.
leigh county, Hon. w. H. Winchester,
Judge. g. w. Newton for appellant.
p. w. Camp for respondents.
Another point Of interest has been
decided by the court, in the case Of Nor
man Markuson of Valley City. He was
convicted of contempt of court, in the
violation Of q liquor injunction case, and
sentenced to fine and imprisonment.
The case was appealed to the supreme
court, on the ground that sentencing to
Imprisonment for contempt was an uncon
s~titutional proceeding, depriving the de-
fendant Of his right TO jury trial.
The court does not look at it IN this
light, and afirms the conviction and SEN
tence. Syllabus as follows:
"A judgment imposing a fine and inn
DrieOnm0nt for cOntemnt Of court nn1or