THE MABEY
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The Supreme Court denied a motion to examine witnesses in an appellate proceeding, holding that parties must present evidence in the lower courts before appealing and cannot introduce new testimony in the Supreme Court without showing a substantial excuse such as evidence discovered too late or witnesses who failed to appear despite subpoena. The Court established that allowing commissions to examine witnesses as a matter of course on appeal would encourage parties to omit evidence at trial and improperly shift the burden of proof-taking to the appellate level, disrupting orderly proceedings.
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Mr. Justice NELSON delivered the opinion of the court. No excuse is shown in the papers, on which the motion is founded, why the witnesses named, and proposed to be examined,, were-not examined in some one of the courts below before the hearing there. The affidavit simply states that the testimony of these witnesses is material,.as advised by counsel. This is not in accordance with the practice of the court. Some excuse, satisfactory to this court, should be shown for the failure to examine them in the courts below, such as that the evidence was discovered when it was too late to procure such examination, or that the witnesses had been subpoenaed and failed to appear, and could not be reached by attachments, and the like.*
Many of the cases bearing on this subject are cases of amendment in the appellate court by adding new allegations and giviug new proofs.† But they involve the practice applicable to motions simply to examine witnesses in the appellate court. There can be no substantial amendment in this court; but if the pleadings or evidence are so defective that no decree can be founded upon them, and the '•ase appear to have merits, the court will reverse the decree and remand the cause to the court below with directions to permit amendments and further proofs.‡
It is quite apparent, if commissions were to be allowed by this court to issue as a matter of course, on a formal application under the twelfth rule, without requiring any excuse for not taking the evidence in the usual way before the courts below, the privilege would be open to great abuse, disturbing the orderly proceedings in courts of admiralty. Instead of taking proofs in the cause in the courts below, and there thoroughly trying it, much of the evidence could safely be omitted, relying on the new evidence in this court. There is no hardship upon the parties in guarding against this abuse with great care and strictness, as they have two opportunities to procure the attendance and examination of the witnesses before they come here on appeal; first, before the District Court, and again before the Circuit.
Motion denied.
*
The Boston, 1 Sumner, 328, 331: Coffin v. Jenkins, 3 Story, 108; The William, 7 Irish Jurist, 354; Jarvis v. Chandler, 1 Turner & Russell, 319.
†
Parsons on Shipping, 2 vol., pp. 429, 430, 431, and note; Conklin’s Admiralty, pp. 418, 419; Lamb v. Parkman (2d Circuit, per Curtis, J.), 21 Law Reporter, 589.
‡
Brig Caroline, 7 Cranch, 496-500; Mary Anne, 8 Wheaton, 380.
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Brig Caroline v. The United States, 7 Cranch 496 (U.S. 1813)
- The Mary Ann: Plumer, 8 Wheat. 380 (U.S. 1823)