No. 580 | 2d Cir. | Apr 17, 1906
Upon the cause being reached for argument, the defendant in error moved to dismiss the writ of error, upon the ground that, the judgment appealed from being a joint one and the codefendant not joined in the writ, this court is without jurisdiction to hear the appeal. The motion is made upon the record, and the record only can be considered. Inglehart v. Stansbury, 151 U. S. 72, 14 Sup. Ct. 237, 38 L. Ed. 76" court="SCOTUS" date_filed="1894-01-03" href="https://app.midpage.ai/document/inglehart-v-stansbury-93745?utm_source=webapp" opinion_id="93745">38 L. Ed. 76. It discloses the following facts: Plaintiff averred that she was injured by reason of a collision between one of the cars of the Interurban Street Railway Company and one of the trucks of the Holbrook, Cabot & Daly Contracting Company. She made both companies defendant, averred that her injuries were inflicted by reason of the “carelessness and negligence of the defendants, their servants, agents, or employes,” and demanded judgment “against the defendants.” The cause came on to trial at a jury session of the Circuit Court in April, 1905, the defendant Holbrook, Cabot & Daly Contracting Company appearing by its attorney, and the defendant Interurban Street Railway Company appearing by its attorney, and the plaintiff appearing by her attorney. The jury rendered a verdict against both defendants, and on April 19th judgment was entered in favor of plaintiff against both. The defendant Holbrook, Cabot & Daly Contracting Company secured the allowance of a writ of error (which in no way indicates upon its face the existence of a codefendant) on May 29, 1905, and its hill of exceptions was settled on September 11th.
It is a familiar doctrine that in cases at law where the judgment is joint all the parties against whom it is rendered must join in the writ of error. The reasons for this practice are that the successful party may be at liberty to proceed in the enforcement of His judgment against.
We are constrained by these decisions to grant this motion. It is apparent that through failure to conform to.the established practice the very thing has happened which that practice was designed to avoid, viz., another appeal from the same judgment. The record does not disclose it, but we must take judicial notice that at this same session a writ of error to review the same judgment, sued out by the railway company, is presented for consideration, and a similar motion made with regard to it. The authorities cited are directly in point and controlling.
The motion is granted.