Earnshaw v. United States

Action against Alfred Earnshaw to recover duties alleged to be due on certain imports of iron ore. A demurrer to the answer was sustained by the district court. 12 Fed. Rep. 283. Subsequently a trial was had, and the court directed a verdict for the United States. A motion for judgment in favor of the defendant non obstante veredicto was overruled, and judgment entered on the verdict. 30 Fed. Rep. 672. On March 1, 1891, a demurrer to new matter in the answer was sustained. 45 Fed. Rep. 782. The judgment was affirmed by the circuit court, and the defendant brings error. Affirmed.

Statement by Mr. Justice BROWN: This was an action by the United States against Earnshaw in the district court for duties upon 11 consignments of iron ore imported by him into the port of New York in 1882. At the entry of the different consignments their values were declared, and to each of these values the appraiser made an addition.

From this appraisement Earnshaw appealed, and demanded a reappraisement, and a day was fixed for the hearing in June, 1883. Earnshaw, as well as the general appraiser and the merchant appraiser, attended upon that day, and the government asked for a postponement. The proceeding was adjourned, but the day was not named, and Earnshaw was told that he would be notified.

Upon March 19, 1884,-nine months after the adjournment,-the defendant, who lived in Philadelphia, was notified by letter from the general appraiser that the appraisement would take place at his office in New York at noon on March 20th. At that time, however, defendant was in Cuba, and his brother, who was also his clerk, wrote the general appraiser in his name that he was out of the country, and would not be back before the beginning of May, and asked a postponement of the hearing until that time. The appraiser telegraphed in reply: 'Your cases adjourned to Tuesday, March 25th, 12 M.' On March 31st, in the absence of Earnshaw, and with no one acting for him, the reappraisement was made, and for the difference between the amount he had paid and the amount thus ascertained this action was brought.

Upon the trial the defendant, having read the statute authorizing the demand for a reappraisement, read the following regulation of the treasury department, to show that he was entitled to notice to be present at the reappraisement that he might tender evidence:

'Art. 466. On the receipt of this report the collector will select one discreet and experienced merchant, a citizen of the United States, familiar with the character and value of the goods in question, to be associated with an appraiser at large, if the attendance of such officer be practicable, to examine and appraise the same according to law. Rev. St. § 2930. * * * The appraiser at large will be notified of the appeal, of the time fixed for reappraisement, and of the name of the merchant appraiser. The importer will be notified of the time and place, but not of the name of the merchant selected to assist in the appraisement. * * * The importer or his agent will be allowed to be present, and to offer such explanations and statements as may be pertinent to the case.'

The defendant relied solely upon the want of proper notice of the reappraisement, and asked the court to instruct the jury as follows:

'(1) If the defendant attended on the day appointed for the appraisement by the merchant chant appraiser, and the United States not being ready to go on, the hearing was postponed indefinitely, the defendant was entitled to such reasonable notice of the time and place of holding the appraisement as would enable him to attend.

'(2) If the United States failed to move in the matter after the adjournment from June, 1883, until March, 1884, and the defendant was then temporarily absent from home, he was entitled to a reasonable time to enable him to return and attend at the appointment.

'(3) If the United States insisted on proceeding with the reappraisement in the absence of the defendant, under the circumstances, as shown by the testimony, the reappraisement is not a valid merchant's appraisement.' The judge declined to instruct as requested, and charged the jury that such notice was given to the defendant as is contemplated by the regulations of the department and the rules of law governing reappraisements; that the reappraisement was valid; and that the plaintiff was entitled to recover a verdict for the amount of the claim, $1,611.20, with interest. This was the amount claimed over and above the amount paid, and for this amount the jury returned a verdict, upon which judgment was entered accordingly. 30 Fed. Rep. 672.

The circuit court affirmed this judgment upon a writ of error, whereupon the defendant sued out a writ of error from this court.

R. C. McMurtrie, for plaintiff in error.

[Argument of Counsel from pages 63-66 intentionally omitted]

Asst. Atty. Gen. Maury, for the United States.

Mr. Justice BROWN, after stating the facts in the foregoing language, delivered the opinion of the court.