105 F. 821 | 7th Cir. | 1901
after making the foregoing statement, delivered the opinion of the court.
The general proposition is familiar that on a writ of error to a judgment at law or on appeal from a decr.ee in equity all the. parties against whom the judgment or decree was jointly rendered must join in the writ of error or appeal, unless good reason for the nonjoinder be shown. Williams v. Bank, 11 Wheat. 414, 6 L. Ed. 508; Owings v. Kincannon, 7 Pet. 399, 8 L. Ed. 727; Wilson’s Heirs v. Life & Fire Ins. Co., 12 Pet. 140, 9 L. Ed. 1032; Todd v. Daniel, 16 Pet. 521, 10 L. Ed. 1054; Masterson v. Herndon, 10 Wall. 416, 19 L. Ed. 953; Simpson v. Greeley, 20 Wall. 152, 22 L. Ed. 338; Feiblcman v. Packard, 108 U. S. 14, 1 Sup. Ct. 138, 27 L. Ed. 984; Hardee v. Wilson, 146 U. S. 179, 13 Sup. Ct. 39, 36 L. Ed. 933; Inglehart v. Stansbury, 151 U. S. 68, 14 Sup. Ct. 237, 38 L. Ed. 716; Davis v. Trust Co., 152 U. S. 599, 14 Sup. Ct. 693, 38 L. Ed. 563; Hamrick v. Patrick, 119 U. S. 156, 7 Sup. Ct. 147, 30 L. Ed. 396; Estis v. Trabue, 128 U. S. 225, 9 Sup. Ct. 58, 32 L. Ed. 437; Mason v. U. S., 136 U. S. 561, 10 Sup. Ct. 1062, 34 L. Ed. 515; Sipperly v. Smith, 155 U. S. 86, 15 Sup. Ct. 15, 39 L. Ed. 79; Elevator Co. v. Nichols, 34 C. C. A. 90, 91 Fed. 832; Hook v. Trust Co., 36 C. C. A. 645, 95 Fed. 41. The question here, however, though in the main so presented, is not one of joinder in the appeal, or of notice and severance for failure or refusal to join therein. As joint intervening petitioners the appellants had a right, without joining others as appellants, to appeal from any final decree against them. The true objection is that they have not joined as appellees the other interveners and parties whose rights are so involved as to be affected by the result of tlie appeal. In its essential features the case is like that of Gray v. Havemeyer, 10 U. S. App. 456, 3 C. C. A. 497, 53 Fed. 174, decided in the Sixth circuit. In Milner v. Meek, 95 U. S. 252, 24 L. Ed. 444, the decree determined the amount and priority of the respective liens upon the estate of a bankrupt'. One of the lienholders appealed, and there was a motion to dismiss because the other lien creditors who were parties to the proceedings below were not parties to the appeal. In response to that objection (.he supreme; court said:
“It is sufficient to say that the appeal was allowed in open court during the term at which the decree was rendered. No citation was, therefore, neees*824 sary. Brockett v. Brockett, 2 How. 241, 11 L. Ed. 786. Milner alone appealed, .but kis appeal brings up so muck of tke case and suck of tke parties as are necessary for tke determination of kis rigkts.”
Accordingly this court has held that an appeal taken in open court at the term when the decree was rendered brings within its jurisdiction all of the parties whose presence is necessary to a determination- of the rights of the appellant. McNulta v. Commissioners, 39 C. C. A. 545, 99 Fed. 328. If, therefore, these appellants had appealed from the decree of March 14, 1899, to which they obtained leave to file exceptions, instead of appealing from the decree of November, it would have been an appeal in1 term, of which, without citation, all the other interveners and the original parties to the suit for foreclosure would have been bound to take notice. In respect to the distribution of the fund then remaining in the registry the decree of March alone was final, and the appeal should have been therefrom. In respect to the foreclosure and sale the decree of November was, of course, final; but, in so far as it defined the basis or rule for the distribution of the fund to be realized between creditors whose claims had not been presented and proved, it was necessarily and could reasonably have been understood to be only preliminary and advisory. The appellants chose, however, to appeal from that decree, acting presumably upon the theory that the declaration of priorities there made was conclusive, hot only upon those to whom prior allowances had been made and paid, but upon subsequent interveners whose rights were determined by the decree of March. That theory can hardly be true; but, if it be assumed to be true, then, the decree appealed from having been rendered at a term of court which had passed, it was clearly necessary to include in the appeal and to serve with notice all parties of record whose interests or rights were directly involved. The receiver was made a party, but he did not appear, and, if he had appeared, plainly it would not have been his "duty or right to undertake to represent the conflicting claims of the intervening creditors as between themselves. Bosworth v. Association, 174 U. S. 182, 19 Sup. Ct. 625, 43 L. Ed. 941. The mortgagor ráilroad company and its successor, the railway company, were not necessary parties, since they had practically become extinct by -the foreclosure and sale, and had no interest in the proceeds. Mercantile Trust Co. v. Adams Exp. Co., 16 U. S. App. 37, 7 C. C. A. 3, 58 Fed. 6. The purchaser took free from all incum branees, and, of course, is not concerned in the appeal; and the receiver himself, without a personal interest to protect, is not a necessary party. Edgell v. Felder, 39 C. C. A. 540, 99 Fed. 324; Railway Co. v. Jackson, 37 C. C. A. 165, 95 Fed. 560. It seems equally clear that no assignment of error upon the decree appealed from could reach or directly affect the allowance ordered and paid to Bell before that decree was entered; but, if it be assumed that it could, then it was certainly necessary to make him a party to the appeal. The order making and directing the immediate payment of that allowance was in itself a final decree for the purpose of appeal, and therefore not challengeable indirectly by an appeal from another decree.