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November 20, 1940


The opinion of the court was delivered by: AVIS

AVIS, District Judge.

A libel for review of a decree of this court directing sale of Schooner A. J. Meerwald to answer certain wage claims was filed by L. B. Sharp, Thurston & High, D.S Powell & Company, B. Campbell, Hinson's Market, R. C. Gates, and Jackson & Sockwell, alleging that each of said libellants had a lien on the schooner under the maritime laws of the United States, and that the prior proceedings were void because of alleged conspiracies and improper proceedings, and praying that the decree be opened, that sale of the schooner under the prior decree be held to be void and of no effect, and that all parties be restored to the status quo at the time of the filing of the lebel and issuance of process in the prior proceedings.

After consideration of the testimony, I find as facts:

 (1) Prior to June 6, 1935, William A. Meerwald, Augustus C. Meerwald, and Augustus J. Meerwald, trading as A. J. Meerwald & Sons, were the owners of the Fishing Schooner A. J. Meerwald.

 (2) On June 6, 1935, Francis X. Meerwald and Edward J. Meerwald filed in this court their libel against the Schooner A. J. Meerwald for claimed wages due to them for services rendered; one as a deck hand and the other as engineer.

 (3) On June 6, 1935, a monition was issued, directed against the A. J. Meerwald, her tackle, &c., and all persons lawfully intervening, &c., and directing the Marshal to attach the aforesaid vessel and to give notice to all persons claiming the same or knowing or having anything to say why the same should not be condemned and sold pursuant to the prayer of the libel, and that they be and appear before the court at Trenton on July 5, 1935, to interpose claim for same, &c.

 (4) No claims or defenses of owners were filed against the libel, and no intervening or other libels were filed against the schooner.

 (5) Endorsed on said monition is the return of the Marshal certifying that on June 7, 1935, by his deputy, he attached the Schooner A. J. Meerwald, and that notice had been given to all parties claiming the same, that the matter would be tried on July 5, 1935, and further that on said June 7, 1935, he had served a copy of the monition and libel on A. J. Meerwald.

 (6) The schooner was attached at or near South Dennis, Cape May County, New Jersey, lying in Dennis Creek.

 (7) The record in the clerk's office does not show any proof of advertising or posting of notice of attachment of the schooner in any place or at any time. The testimony of the deputy marshal shows only that copy of libel and monition was posted on the boat and service made on A. J. Meerwald.

 (8) It further appears by exhibits offered at the trial that a notice of the attachment of Schooner A. J. Meerwald at the suit of Francis X. Meerwald, et al., was published in the Cape May Star and Wave, a newspaper published at Cape May, New Jersey, in its issues of June 20, 1935, and June 27, 1935. This notice stated generally that the seizure was made for claims set forth in the libel pending in the United States District Court and calling upon interested parties to appear at Trenton on July 5, 1935. The notice did not contain or set out the substance of the libel.

 (9) The Cape May Star and Wave was a newspaper published near the place of seizure.

 (10) South Dennis was the home port of the schooner and the fact that the vessel was attached in Dennis Creek near the village aforesaid is not in itself indicative that the vessel had been removed from Maurice River in pursuance of a conspiracy or any indication of an act tending to deceive the other creditors of the schooner.

 (11) No claim was made to the court by any owner or other interested party, and no subsequent libels or interventions were filed.

 (12) Upon the default an order of reference was made to Wynn Armstrong, United States Commissioner, to take the testimony and proofs and determine the respective amounts due to the libellants. The Commissioner reported upon, and returned, the testimony taken before him, and certified that the amount due to Francis X. Meerwald was the sum of $7,220 and the amount due Edward J. Meerwald was the sum of $3,935. This report was filed July 31, 1935.

 (13) On July 5, 1935, an interlocutory decree was entered, which, among other things, directed the Marshal to sell the schooner and make report thereof on July 26, 1935.

 (14) Venditioni exponas was issued July 5, 1935, and thereunder the Marshal advertised the schooner for sale at public vendue on July 23, 1935. The proofs show that proper notices of sale were posted on the boat and five other notices in different parts of Cape May County.

 (15) At the sale the schooner, her tackle, &c., was struck off and sold to Texas-Pacific Realty Company for the sume of $1,500.

 (16) The Marshal reported the sale to the court by report dated July 26, 1935, and the order confirming said sale was made by the court on July 27, 1935. (17) After the filing of the Commissioner's report, the court on August 6, 1935 entered a final decree distributing the proceeds of sale as follows: Clerk of the court $ 25.00 U.S. Marshal 74.64 U.S. Commissioner 30.00 Willard M. Harris (proctor's costs) 26.50 Libellant Francis X. Meerwald 869.80 Libellant Edward J. Meerwald 474.06


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