40 Fla. 149 | Fla. | 1898
At the last term, bn the 7th day of December, 1897, upon reaching this case in its regular order on the docket for final determination, the court dismissed the same for the reason that the judgment from which the writ of error was taken was a joint one against E. B. Cornell and Isaac Morgan as copartners under the firm name of E. B. Cornell and.Company, and the writ of error was sued out by and in the name of Elijah B. Cornell alone, omitting the joint-judgment-debtor and partner Isaac Morgan.
The sole plaintiff in error, Elijah B. Cornell, now moves the court to vacate the order of dismissal so entered, and to reinstate the cause upon our docket, and to allow the writ of error to be amended by inserting therein as a plaintiff in error jointly with said Elijah B. Cornell the name of his said-co-judgment-debtor Isaac Morgan and, upon such amendment being made, to grant a summons to said Isaac Morgan requiring him to join in prosecuting said writ of- error, or, in default thereof, that severance as to him be ordered. This application is strenuously objected to by the defendant in error upon the grounds, among others, that the application is not seasonably made, that it should have been made before
There is no doubt as to the discretionary power of this court to permit writs of error' to be amended by inserting therein the names of necessary parties who have been improperly omitted therefrom, and to strike from it the names of parties who have been improperly included therein. But before the court can property exercise such discretion in favor of having such an amendment made so as to bring into the writ new parties that have been omitted therefrom, the application therefor should be mad & .before the time limited by law for suing out writs of error has expired. In Loring v. Wittich, 16 Fla. 323, this court permitted an amendment of the writ of error to be made by which divers parties improperly included therein as plaintiffs in error were stricken therefrom. In Whitlock v. Willard, 18 Fla. 156, that was an appeal in chancery, an amendment of the appeal by bringing in new parties was permitted, but in that case the time limited for taking appeals had not expired when the amendment was allowed, and no objection was urged against the same. In Nash v. Haycraft, 34 Fla. 449, 16 South. Rep. 324, an amendment of a writ of error bringing in an omitted party was permitted after the lapse of the time limited for suing out writs of error, but no question was raised or urged in opposition to the amendment in that case on the ground that’the bar of the statute had run against the new party plaintiff in ener sought to be brought in by the amendment, and the amendment was applied for before the comí had reached the case for final disposition, the plaintiff in error discovering the defect in his proceeding'himself and
If one against whom a judgment has been rendered jointly with another is not joined as a party plaintiff in a writ of error sued out from such judgment by his co-defendant until after the expiration of the time limited for suing out writs of error, .the amended writ of error bringing him in as a party plaintiff in error, is, as to him, an entirely new writ, issued then, so far as he is concerned, for the first time, and, as to him, is a writ of error issued after the lapse of the time in which the law permits him to sue it out. In the case of Smetters and Harris v. Rainey, 14 Ohio St. 287, it is held that all the defendants in'a joint judgment are necessary parties to an appellate proceeding seeking its reversal, and that if all such defendants are not made parties to such appellate proceeding within the time limited by law for instituting such appellate proceeding, the revising court has no such jurisdiction over the subject-matter as will authorize it to reverse or modify any part of such judgment. It was further held in the same case that any such joint-judgment-debtor who is not made a party to the appellate proceeding instituted by his co-debtor until after the statutory bar, may, upon being brought in, plead'such statutory bar, and such plea will oust the jurisdiction of the revising court to reverse or modify any part of the judgment. To the same effect are the cases
Section 1271 Revised Statutes provides that all writs of error in civil actions shall be sued out within six
The motion to reinstate the cause, and to be allowed to amend the writ of error by making Isaac Morgan a party plaintiff therein, and. for a summons 'and severance as to him, are, therefore, hereby denied.