165 F. 157 | 8th Cir. | 1908
On July 13, 1905, in an action pending in the United States court for the central district of the Indian Territory, a judgment was rendered that the plaintiff, Edward D. Sittel, recover of the defendants, Allen Wright, O. W. Argp, and Yancey Lewis, the possession of a certain lot. of land, $435 damages, and the costs of his suit. On July 33, 1905, upon the petition of Wright and Lewis, to which Argo was not a party, a writ of error was allowed by the United States Court of Appeals' in the Indian Territory to review that judgment. On May 13, 1906, Sittel moved the Court of Appeals of the Indian Territory to dismiss the writ because Argo had not been made a party to it. Wright and Lewis answered that the reason why Argo had been omitted was that he was not a resident of the Indian Territory when the writ was sued out and his residence was unknown, but that it had lately been discovered, and they and Argo prayed that he might be joined a party plaintiff in the proceeding, but the court declined to grant the application and dismissed the writ, and this ruling is assigned as error.
In the appellate courts of the United States the rule is that all the parties to a suit or proceeding, who appear from the record to have an interest in the order, judgment, or decree challenged by the appeal or writ of error, must be made parties to the proceeding or must be given a notice equivalent to summons and severance before the court will proceed to a decision of the merits of the case, and this to the end that the successful party may be at liberty to enforce his judgment, decree, or order without delay against those parties who do not desire to have it reversed, and that the appellate court may not be required to decide the same question more than once upon the same record. Masterson v. Herndon, 10 Wall. 416, 19 L. Ed. 953; Hardee v. Wilson, 146 U. S. 179, 181, 13 Sup. Ct. 39, 36 L. Ed. 933; Davis v. Mercantile Trust Co., 152 U. S. 590, 14 Sup. Ct. 693, 38 L. Ed. 563; Gray v. Havemeyer, 3 C. C. A. 497, 505, 53 Red. 174, 1825; Farmers’ Loan & Trust Co. v. McClure, 78 Fed. 211, 213, 24 C. C. A. 66, 68; Dodson v. Fletcher, 78 Fed. 214, 215, 24 C. C. A. 69, 70.
The Court of Appeals in the Indian Territory held that the time for suing out its writ of error was limited to six months after the judgment was rendered in the trial court by the Act of March 3, 1905, c. 1479, § 12, 33 Stat. 1081 (U. S. Comp. St. Supp. 1907, p. 208), but counsel for the plaintiffs in error argue that this was an error, and that iheir application to make Argo a party should have been granted and their writ should have been sustained because the time for procuring and the manner of prosecuting writs of error from that court were those prescribed by Mansfield’s Digest for such writs from the Supreme Court of Arkansas, and not those which conditioned writs from the United States Circuit Court of Appeals of the Eighth Circuit to the United States Circuit Courts. The time for suing out a writ of
“TJiat hereafter all appeals and writs of error shall ho taken from Hie United Slates courts in the Indian Territory to the United States Court of Appeals in the Indian Territorj, and from the United States Court of Appeals in the Indian Territory to the United States Circuit Court of Appeals for the Eighth Circuit in the same manner as is now provided for in eases taken by appeal or writ of error from the Circuit Courts of the United States to the Circuit, Court of Appeals of the United States for the Eighth Circuit.”
Counsel invoke the conceded rule that repeals by implication arc not favored, and that, where sections of earlier and later acts can by any reasonable construction stand together, they must so stand (Gowen v. Harley, 56 Fed. 973, 6 C. C. A. 190), and persuasively argue that the manner of securing the writ does not include the time for securing it, and that both the time and the manner of the prosecution of wrrits from the Court of Appeals of the Indian Territory remained the same after as before the passage of the act of 1905. But the purpose of all construction of statutes is to ascertain and carry into effect the real intention expressed by the legislative body which originated them, and when this clearlt' appears from the terms of the statute technical rules and definitions may not prevail over it. The word “hereafter” in section 12 of the act of 1905 strongly indicates the purpose of the Congress to provide that after the passage of that act appeals and writs of error should he taken and prosecuted in a different manner from that in which they had been sued out and carried on prior to that time. Under the former practice defeated parties were permitted to obtain writs from the Court of Appeals of the Indian Territory at any time within three years after judgments in the tria! courts against them, and writs from this court at any time within six months after judgments of the Court of Appeals of the Indian Territory
But counsel present another contention. They argue that although the time to sue out the writ had expired, yet when Argo and the two plaintiffs in error named in the writ applied to the Court of Appeals of the Indian Territory to permit him to become a party to the proceeding, that court had the power, and it was its duty, to grant the application and to proceed to hear the case upon its-merits. They say that the provisions of chapter 40 of Mansfield’s Digest prescribed the power and duty of that court, and that if they did not, and if these were the same as those conferred and imposed upon this court under similar circumstancés, the plaintiffs in error were in either case entitled to the relief they sought. Conceding, -without deciding, that the Court
Nevertheless the merits of the case have been carefully examined,
The judgment of the Court of Appeals of the Indian Territory must therefore be affirmed, and it is so ordered.
HOOK, Circuit Judge, concurs with the affirmance on the merits.