On the eighteenth of January last a decision was made in this case (116 U. S. 427, S. C. ante, 437) affirming the judgment below, rendered on an information in rem, filed for the forfeiture to the United States of certain personal property seized for a violation of the internal revenue laws. There was a trial by jury and a verdict for the United States. The claimant, in his answer, had set up in bar that a criminal information had been filed against him, in the same court, alleging as offenses the same matters averred in the information in the civil suit, and that he had pleaded guilty and been adjudged to pay a fine. There was no demurrer or reply to this answer. After verdict, the claimant moved in arrest of judgment, alleging as cause the judgment in the criminal proceeding, but the motion was overruled. There was no bill of exceptions, and no exception to the overruling of the motion.
On the hearing in this court the claimant contended that, as there was no traverse of the answer, it must be taken to be true. But this court held that no reply or replication to the answer was necessary to raise an issue of fact on the matters averred in it; that the proceedings, so far as the pleadings were concerned, were kindred to those in a suit in admiralty in rem; that the general rules of pleading in regard to admiralty suits in rem apply to suits in rem for a forfeiture, brought by the United States, after a seizure on land, as laid down in the cases of The Sarah, 8 Wheat. 391; Union Ins. Co. v. U. S., 6 Wall. 759, 765; Armstrong's Foundry, Id. 766, 769; and Morris' Cotton, 8 Wall. 507, 511; that rule 22 of the rules in admiralty prescribes regulations for the form of informations and libels of information on seizures for the greach of the laws of the United States on land or water; that by rule 51, in admiralty, new matter in an answer is considered as denied by the libelant; that the issue of fact as to the former conviction must be held to have been found against the claimant by the general verdict; and that no question in regard to the defense set up could be raised.
An application is now made by the claimant for a rehearing on the ground that, as to the pleadings, the case must be governed by section 914 of the Revised Statutes, which is a re-enactment of section 5 of the act of June 1, 1872, c. 255, (17 St. 197,) and is in these words: 'The practice, pleadings, and forms and modes of proceeding in civil causes, other than equity and admiralty causes, in the circuit and districts courts, shall conform, as near as may be, to the practice, pleadings, and forms and modes of proceeding existing at the time in like causes in the courts of record of the state within which such circuit or district courts are held, any rule of court to the contrary notwithstanding.' It is urged that this is a civil cause, but not an equity or an admiralty cause, and that the provisions of sections 126 and 386 of the Civil Code of Practice of Kentucky, which took effect January 1, 1877, apply to it. Those sections are as follows:
'Sec. 126, [153.] Every material allegation of a pleading must, for the purposes of the action, be taken as true, unless specifically traversed.'
'Sec. 386, [416.] Judgment shall be given for the party whom the pleadings entitle thereto, though there may have been a verdict against him.'
The practice as to the pleadings in suits in rem like the present having been well settled prior to the passage of the act of June 1, 1872, the question is whether is was changed by that act. In Union Ins. Co. v. U. S., 6 Wall, 759, 764, where land was seized and proceeded against as forfeited to the United States under a confiscation act, it was held that while either party had a right to demand a trial by jury, the proceedings were to be 'in general conformity to the course in admiralty.' A like ruling was made, in a like case, in Armstrong's Foundry, 6 Wall. 766, 769, and in a case of the seizure of personal property on land, in Morris' Cotton, 8 Wall. 507, 511. Section 914 prescribes a conformity to the practice in the courts of the state only 'as near as may be,' and only 'in like causes.' It is a proper construction of this section to hold that, while the provisions of the Code of Kentucky in regard to pleadings in civil suits in personam apply to like causes in the federal courts in Kentucky, they do not apply to suits in rem by the United States for the forfeiture of property, after its seizure, for the violation of a revenue law, because there are no 'like causes' known to the laws of Kentucky. Such suits in rem are peculiar in their practice, pleadings, and forms of procedure, and, so long as there is ample scope for the operation of section 914 of the Revised Statutes in regard to civil suits in personam, and no intention is manifest to change the established practice in such suits in rem, and any change in practice is limited to 'like causes,' we must continue to regard the former practice as applicable to the present suit.
The question of the scope of operation of section 914 has been considered by this court in Nudd v. Burrows, 91 U. S. 426; Indianapolis R. Co. v. Horst, 93 U. S. 291; Newcomb v. Wood, 97 U. S. 581; and Ex parte Fisk, 113 U. S. 713; S. C. 5 Sup. Ct. Rep. 724. In Newcomb v. Wood it was held that the section did not abrogate the established rule in the courts of the United States that to grant or refuse a new trial was a matter of discretion, which could not be reviewed on a writ of error; and that a state law entitling a party to a second trial in an action to recover the value of personal property did not entitle him to a second trial in such an action in a federal court. No decision has been made by this court in conflict with the views above indicated as applicable to this case, and the application for a rehearing is denied.
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