In re Woerishoffer, No. 507

No. 507 | 5th Cir. | May 25, 1896

PARDEE, Circuit Judge.

F. C. Renner and II. Summerboff, alleging themselves to be citizens of the state of New York, and composing the Arm of Woerishoffer & Co., apply to this court for an order directed to the circuit court for the Kastera district of Texas, prohibiting the execution of certain decrees rendered in that court, on November 4, 1894, and on the 25th, 26th, 28th, 29th, and 30th of October, 1895, respectively, and on the 12th of November, 1895, and particularly tlie distribution of funds thereunder, in the case of John W. Smith v. The Texas & Western Railway Company et al., on the docket of said court, on the ground that said WoerishofEer & Co. had taken an appeal from said tlecrees, and given proper super-sedeas bond within the delays allowed by law and the rules of court. The record presented does not show that either Woerishoffer & Co. or the individual members of that firm were parties or privies to the suit, but does show that they first made application for an appeal on the 23d day of January, 1896, more than 60 days, exclusive of Sundays, after the rendition of the last decree above j mentioned; that even then their application was accompanied by ino bond for a supersedeas, nor by any assignment of errors; and that the application was referred by the district judge to one of the circuit judges, who, on the 17th day of April, 1896, granted an appeal from the above-mentioned decrees, which order was. followed on April 27, 1896, by the filing of a bond and the issuance of citations. It is true the records of this court show that within the 60 days following the 25th of October, 1895, one Elijah Smith and the Texas Western Railway Company, parties to the suit, on motion in open court, were allowed an appeal from the decrees of the 25th, 26th, 28th, 29th, and 30th of October, 1895; and on the 27th day'of November an appeal bond was filed, which was approved by the district judge acting in the circuit court, but after the adjournment of the term, which bond names Woerishoffer & Co. as a principal, and recites that Woerishoffer & Co., among others named, ‘‘have prosecuted an appeal to reverse the decree rendered in the above-entitled cause,” but does not specify any particular decree of the many decrees rendered in the cause. This bond was accompanied with no citations nor by any assignment of errors. The appeal taken by Elijah Smith and the Texas & Western Railway Company was afterwards docketed and dismissed in this court for want of prosecution.

An appeal sued out in the name of a firm, but not giving the names of the individuals who compose the firm, must be dismissed (The Protector, 11 Wall. 82" court="SCOTUS" date_filed="1871-01-30" href="https://app.midpage.ai/document/the-protector-88304?utm_source=webapp" opinion_id="88304">11 Wall. 82), unless it can be amended by the record (Moore v. Simonds, 100 U.S. 145" court="SCOTUS" date_filed="1879-12-15" href="https://app.midpage.ai/document/moore-v-simonds-90026?utm_source=webapp" opinion_id="90026">100 U. S. 145). A person not a party or privy cannot appeal. Bayard v. Lombard, 9 How. 530" court="SCOTUS" date_filed="1850-05-28" href="https://app.midpage.ai/document/bayard-v-lombard-86579?utm_source=webapp" opinion_id="86579">9 How. 530; Ex parte Cockcroft, 104 U.S. 578" court="SCOTUS" date_filed="1882-01-23" href="https://app.midpage.ai/document/ex-parte-cockcroft-90504?utm_source=webapp" opinion_id="90504">104 U. S. 578; Ex parte Cutting, 94 U.S. 14" court="SCOTUS" date_filed="1877-01-15" href="https://app.midpage.ai/document/ex-parte-cutting-89430?utm_source=webapp" opinion_id="89430">94 U. S. 14; Guion v. Insurance Co., 109 U.S. 173" court="SCOTUS" date_filed="1883-11-05" href="https://app.midpage.ai/document/guion-v-liverpool-london--globe-insurance-1852339?utm_source=webapp" opinion_id="1852339">109 U. S. 173, 3 Sup. Ct. 108. An appeal may be perfected without a formal order allowing it. It is, in effect, allowed when the circuit judge takes security and signs citation. Brandies'v. Cochrane, 105 TJ.'S. 262. Where a bond for an appeal from a certain decree is approved in open court at the same term that the decree is rendered, no formal order or citation is necessary to perfect the appeal. Sage v. Railroad Co., 96 U. S. 714.

As the bond of November 27th, in which the firm of Woerishoffer & Co. is named, does not show the names of the individuals composing that firm, nor that Woerishoffer & Co. was in any wise a party or privy to the suit, nor that the bond was approved in open court during the term the decree appealed from was rendered, nor any particular decree as appealed from, nor any citation, we are of opinion that in Hus present matter the applicants have not taken an appeal from any deci*ee of ihe circuit court entered in the case of John W. Smith v. The Texas & Western Railway Company et al. within 60 days, exclusive of Sundays, from the rendition thereof; nor have they given any such bond within ihe delays allowed by law and the rules of court as to operate a supersedeas as to any decree rendered in said cause. The application is denied, and the temporary order issued dissolved, with costs.