Masterson v. Herndon
77 U.S. 416 (1869)

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U.S. Supreme Court

Masterson v. Herndon, 77 U.S. 10 Wall. 416 416 (1869)

Masterson v. Herndon

77 U.S. (10 Wall.) 416

Syllabus

1. All the parties against whom a joint judgment or decree is rendered must join in the writ of error or appeal or it will be dismissed except sufficient cause for the nonjoinder be shown.

2. In writs of error where one of the parties refused to join in the writ, the remedy was anciently by summons and severance, which barred such party from suing out the writ afterwards and allowed the judgment to be enforced against him while the other prosecuted the writ of error.

3. The same effect will be given by this Court to the allowance of a writ of error or an appeal when one of the parties has been notified or requested in writing to join in the writ of error or appeal and refuses to do so.

Howard and others filed in the court below a bill of peace and for conveyance of pretended title to a tract of land described against S. A. Maverick and J. H. Herndon, and on that bill the court decreed that the complainant

"have and recover of the said S. A. Maverick and the said J. H. Herndon the tract of land in the bill described, and that their title to the same is hereby decreed to be free from all clouds cast thereon by the said defendants."

From this decree Herndon appealed. In regard to Maverick, the petition, which was signed by counsel only, and was not sworn to, was thus:

"Your petitioner says that his co-defendant, Maverick, refuses to prosecute this appeal with him."

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