119 F. 353 | 2d Cir. | 1902
The motion of the defendant in error to dismiss the writ of error proceeds upon the theory that two of the defendants in the court below are not joined as plaintiffs in error in the writ. As the action was ejectment, and the judgment sought to be reviewed by the plaintiffs in error was a joint judgment against all the defendants for a recovery of possession and of mesne'profits and costs, it was necessary that all the defendants should join in the writ. This court does not obtain jurisdiction to review such a judgment unless all the defendants have joined in the writ of error, or unless a severance in interest has been effected and made to appear by the record. Masterson v. Herndon, 10 Wall. 416, 19 L. Ed. 953; Feibelman v. Packard, 108 U. S. 14, 1 Sup. Ct. 138, 27 L. Ed. 634; Ayres v. Polsdorfer, 45 C. C. A. 24, 105 Fed. 737. It appears, however, that all the defendants are named in the writ as plaintiffs in error, and the contention that two of them are not joined rests solely upon the ground that these two did not join in the petition presented when the writ was granted, and that the court below upon the motion of the plaintiff made an order striking from the writ the names of the two defendants who did not join in the petition. Although all the defendants did not join in the petition, the application for the writ was made by the attorney of record for all the defendants named’ in the writ, and he did not consent to the order of the court below
The motion is denied.
