Loveless v. Ransom, 107 F. 626

107 F. 626 | 7th Cir. | 1901

JENKINS, Circuit Judge,

after the foregoing statement of the case, delivered the opinion of the court.

The rule is firmly established that, where a judgment or decree is joint, all the parties against whom it is rendered must join in the writ of error or appeal, unless there he summons and severance, or the equivalent. Williams v. Bank, 11 Wheat. 414, 6 L. Ed. 508; Owings v. Kincannon, 7 Pet. 399, 8 L. Ed. 727; Wilson v. Insurance Co., 12 Pet. 140, 9 L. Ed. 1032; Smyth v. Strader, 12 How. 327, 13 L. Ed. 1008; Masterson v. Herndon, 10 Wall. 416, 19 L. Ed. 953; The Proteetor, 11 Wall. 82, 20 L. Ed. 47; Hampton v. Rouse, 13 Wall. 187, 20 L. Ed. 593; Simpson v. Greeley, 20 Wall. 152, 22 L. Ed. 338; Feibelman v. Packard, 108 U. S. 14, 1 Sup. Ct. 138, 27 L. Ed. 634; Estis v. Trabue, 128 U. S. 225, 9 Sup. Ct. 58, 32 L. Ed. 437; Downing v. McCartney, 131 U. S. xcviii., 19 L. Ed. 757; Mason v. U. S., 136 U. S. 581, 10 Sup. Ct. 1062, 34 L. Ed. 345; Dolan v. Jennings, 139 U. S. 385, 11 Sup. Ct. 584, 35 L. Ed. 217; Hardee v. Wilson, 146 U. S. 179, 1.3 Sup. Ct. 39, 36 L. Ed. 933; Ingelhart v. Stansbury, 151 U. S. 68, 14 Sup. Ct. 237, 38 L. Ed. 76; Davis v. Trust Co., 152 U. S. 590, 14 Sup. Ct. 693, 38 L. Ed. 563; Sipperly v. Smith, 155 U. S. 86, 15 Sup. Ct. 15, 39 L. Ed. 79; Railway Co. v. Evans, 175 U. S. 723, 20 Sup. Ct. 1023, 44 L. Ed. 337; Fordyce v. Trigg, 175 U. S. 723, 20 Sup. Ct. 1024, 44 L. Ed. 337.

The supreme court has declared that the matter is jurisdictional, and may be raised at any time before Anal disposition of the appeal; and we have, in conformity with that ruling, so held in this court. Hook v. Trust Co., 36 C. C. A. 645, 95 Fed. 41; Kidder v. Safe-Deposit Co. (C. C. A.) 105 Fed. 821. An appeal or writ of error by one of several defendants in a joint judgment allowed at the term at which the judgment was rendered can be sustained upon the ground that during the term all the parties thereto are to he deemed present in court, and that the allowance of the appeal or writ of error by the court is equivalent to summons and severance. McNulty v. Commissioners, 39 C. C. A. 545, 99 Fed. 328. This case, however, does not fall within that ruling. The prayer for an appeal is in no proper sense a part of the bill of exceptions. The office of that paper is to place upon record things occurring at or before judgment which would not otherwise be a part of the record. The bill here mentions a prayer for an appeal instead of a prayer for a writ of error, and in that respect is manifestly inaccurate. No assignment of errors was then filed, and, if the statement in the bill may be held to indicate an attempt to sue out a writ of error, it was abandoned; for at*a subsequent term plaintiff in error presented his petition for a writ of error, with a proper assignment of errors, which was then allowed, and the bond previously filed, by a liberal construction of the order, may be deemed to have been approved. It cannot be said that any writ of error was allowed or sued out during the term at which the judgment was rendered, and, as the judgment was joint against all the defendants, the writ of érror should have been on behalf of all, or there should have been summons and severance. The object of the rule is that the appellate court shall not be twice vexed with the same case and the same question, when one appeal or writ of error will suffice. It is said, however, that at most the failure to join the joint judgment debtors in the writ of error or to obtain summons and severance is an irregularity only, and may be waived, and is waived by the filing of briefs to the merits; that the case is like that df a suit against but one of two or more joint debtors, in which case the objection to the defect of parties should be taken by plea in abatement, or the defect is waived. This contention is not without merit, and is not without much force, and seems to be sustained by several decisions in the state courts. We are, however, concluded upon this question by the decision of the supreme court of the United States, which holds the question to be jurisdictional, and that “where there is a substantial defect in a writ of error, which this court cannot amend, it has no jurisdiction to try the case.” Wilson v. Insurance Co., supra. The writ of error is dismissed.