Appeal from the District Court of the United States for the District of New Jersey; Phillip Forman, Judge.
Before BUFFINGTON and BIGGS, circuit Judges, and WATSON, District Judge.
This is an appeal from an order of the District Court for the District of New Jersey, denying the application of the Appellant to intervene in libel proceedings instituted by the United States Government against the vessel "Charles D. Leffler."
Libel was filed in May, 1936, praying forfeiture for violation of various provisions of the Customs Laws, and monition was made returnable June 19, 1936. Upon petition filed June 13, 1936, Daniel W. Robins was, on June 24, 1936, granted leave to intervene. On June 24, 1936, decree of forfeiture was entered and the marshal ordered to sell the vessel and pay the proceeds into the Court Registry. The vessel was sold for the sum of $6,050, the marshal reporting the sale of September 9, 1936. On September 3, 1936, Judge Clark made an order granting the A. Hiltebrant Dry Dock Company Inc., the Appellant, leave to intervene. On November 4, 1936, the marshal made his return of sale and paid the proceeds into the Court registry. On January 4, 193m, upon motion of the United States Attorney and of Daniel W. Robins, Intervenor, Judge Clark vacated his order of September 8, 1936, permitting Appellant to intervene. Thereafter Appellant presented to the Court a new motion for leave to intervene, which was denied by Judge Forman on April 10, 1937. From this order appeal was taken, and notice of appeal given to the United States Attorney. Thereafter, on June 18, 1937, an order was entered by Judge Forman amending the notice of appeal, assignments of error, and citation to include notice to counsel for the intervenor, Daniel W. Robins.
It is the contention of the Intervenor, Daniel W. Robins, that the Appeal should be dismissed because of the failure of Appellant to include him in the original notice of appeal. The order amending the notice of appeal having been entered after perfection of the appeal, it is Robins' position that it is void because made after jurisdiction was transferred to this Court.
With this contention, we cannot agree. Although the District Court is without jurisdiction to make any change in the order appealed from after appeal is perfected, the District Court is not without jurisdiction to do such things as are appropriate to perfect the record. Hovey v. McDonald, 109 U.S. 150, 3 S. Ct. 136, 27 L. Ed. 888. The order amending notice of appeal in the case falls into the latter category and was properly entered.
The record does not anywhere disclose the reasons for the order of Judge Clark vacating his order permitting Appellant to intervene or for the order of Judge Forman denying Appellant's second motion to intervene. Appellant's second motion is supported by an affidavit setting forth facts giving rise to a maritime lien. Notice of the motion was given to counsel for the Libellant and to counsel for the Intervenor, and it does not appear that the valid, legal rights of any party to the record would have been prejudiced by the intervention of the Appellant. Although it may be that if the Appellant is permitted to intervene, the claim of the Intervenor, Robins, will be relegated to a position junior to the claim of the Appellant, that is not a valid objection to the motion. The law fixes the order of priority of liens, and it is the duty of the Courts to see that they are properly enforced.
In this case, the proceeds of the sale of the vessel libelled are in the Court Registry for distribution according to law. That the Court has exclusive jurisdiction to make such distribution is axiomatic. Where it appears that no injustice will be done, it is the policy of the Courts to make distribution to those lawfully entitled, late comers as well as otherwise, without enforcing nice rules of practice relating to the time or manner of presenting claims. The Dode, D.C., 100 F. 478. It is clear that maritime liens upon property sold by order of the Admiralty Court follow the proceeds. The Lottawanna, 20 Wall. 201, 87 U.S. 201, 221, 22 L. Ed. 259. Although rules of practice cannot be so far overlooked as to follow the proceeds into the hands of claimants after distribution has been made (The Dode, supra), no injustice can be done by allowing intervention after the time fixed by court rules has passed, where, as here, the proceeds are in court awaiting distribution to those lawfully entitled. Indeed, grave injustice may be done by failure to permit intervention by Appellant in this case.
BIGGS, Circuit Judge (dissenting).
On May 27, 1936, the United States, by the District Attorney for the District of New Jersey, filed a libel praying for the forfeiture of the oil screw, Charles D. Leffler, for alleged violation of the customs laws of the United States. The libel set up seven grounds of forfeiture. The second of these grounds alleges that over 40,000 gallons of alcohol were unladen without a permit from the Leffler within the customs water of the united States in the District of New Jersey before the vessel had reached the proper place of discharge, in violation of Section 586 of the Tariff Act of *fn19301 (19 U.S.C.A. § 1586).
Upon June 24, 1936, Daniel W. Robins, the holder of a mortgage upon the Leffler, was permitted to intervene in the cause and on the same day a decree of forfeiture and sale was made by the District Court against the Leffler and her equipment. upon September 2, 1936, the United States Marshal sold the Leffler for $6,050. upon September 8, 1936, the appellant, Hiltebrant Drydock Company, claiming a maritime lien, filed its petition seeking to intervene in the cause and upon the same day its intervention was allowed by the court. Upon September 12, 1936, the District Court confirmed the sale of the Leffler as made by the Marshal. Upon January 4, 1937, the court entered an order vacating and setting aside its order of September 8, 1936, allowing Hiltebrant's intervention. Upon February 23, 1937, notice of a motion was filed by Hiltebrant to the end that it might be permitted to intervene against the proceeds of the forfeiture. Upon April 10, 1937, the District Court entered its decree denying Hiltebrant's motion for intervention. The pending appeal is from the decree referred to.
In its petition for intervention Hiltebrant alleges that it performed services for the Leffler of a total value of $3,194.79 and that a balance upon this sum in the amount of $2,194.79 remains unpaid. Hiltebrant's services to the Leffler were completed in April, 1936. Hiltebrant contends that it is possessed of a maritime lien superior over ...