The opinion of the court was delivered by: BYERS
The claimant, in a limitation proceeding now pending before the commissioner appointed "to take proof and to report to this Court * * * his findings as to the amount or value of the petitioner's interest in the steam tug * * * and the amount of the claimant's damages," seeks by this motion to induce the court to reverse a ruling of the commissioner, touching the order of proof before him, as to the value of the petitioner's interest in the vessel.
The question of practice presented is deemed to be of sufficient importance to enlist the affidavits of three well-known proctors not interested in the pending cause, and will be seen to possess a certain degree of practical importance in limitation proceedings.
There is no reported ruling upon the subject.
This proceeding was initiated by the usual petition filed December 23, 1930, in article Tenth of which the averment was that the value of the petitioner's interest in the steam-tug Bushby did not exceed $2,015.30. Appraisal was asked, and also the entry of an order directing the petitioner to file a stipulation for the payment into court of the amount of the interest; and that, upon the filing thereof, or the giving of an ad interim stipulation, the usual injunction issue.
On December 31, 1930, an order for an ad interim stipulation was signed, based upon affidavits of two persons setting forth their opinions as to the value of the vessel. That order provided that, upon the filing of a report by a commissioner named to appraise the petitioner's interest, any party might apply to have the amount increased or diminished.
Separately and simultaneously an order was entered referring to a commissioner therein named the duty of taking proof of petitioner's interest, and filing a report thereon; and further that the said value, when finally appraised and approved, be paid into the registry of the court or covered by adequate stipulation.
Also, on the same day, the usual restraining order was signed and filed, which recited the petition, the affidavits of value, and the ad interim stipulation.
The claimant filed answer, raising an issue as to the value of the petitioner's interest.
The statement is made, in claimant's brief, that the petitioner took no steps to prove the value of its interest, and that the cause proceeded to trial, with the result that exoneration was denied, and the claimant awarded half damages.
Assuming that there was no inquiry conducted by the commissioner appointed in the order directing the making of an appraisal, it will be seen that the only information concerning the value of the petitioner's interest in the vessel, now before the commissioner appointed to function pursuant to the interlocutory decree, is that contained in the affidavits made and filed on December 31, 1930.
The petitioner asserts that the ad interim stipulation, based upon those affidavits, constitutes its prima facie proof of the value of its interest, and that the duty now rests upon the claimant to offer proof, if any he has, in opposition thereto.
Such a position imputes to ex parte affidavits a status which would not be accorded to witnesses called to testify before the commissioner of appraisal, for they would be subject to cross-examination; if they failed to survive it, and the commissioner should call upon the petitioner to offer further testimony on the question of the value of the petitioner's interest, it is clear that such requirement would have to be met.
Therefore, in the proceedings before the commissioner appointed to appraise, it is clear that the duty to open the proof would rest upon the petitioner, as it would if the ...