1. After the time for appeal as fixed by statute has expired,
this Court has not jurisdiction to permit a party below to join in
an appeal taken in time by another party. P. 285 U. S.
Page 285 U. S. 170
2. To review a judgment against two parties jointly (in this
case, a party and the surety upon its appeal bond in the court
below), both must join in the appeal or there must be summons and
severance. P. 285 U.S.
3. For applying this rule, a judgment is deemed joint if joint
on its face. Pp. 285 U. S.
161 Miss.198, appeal dismissed.
Appeal from a judgment against the Hartford Company and the
surety on its appeal bond in the court below. The judgment granted
recoveries to numerous materialmen in a suit on a building
contractor's bond. For opinions of the court below at successive
155 Miss. 31 (119 So. 366); 132 So. 535; 135
Page 285 U. S. 174
MR. JUSTICE McREYNOLDS delivered the opinion of the Court.
October 18, 1926, J. V. and R. T. Burkes agreed with the
investment company, owner of certain land in Natchez, Mississippi,
to construct a hotel thereon. The contract contains the following
"Article 30. Guaranty Bond. -- The Owner shall have the right,
prior to the signing of the contract, to require the Contractor to
furnish bond covering the faithful performance of the Contract and
the payment of all obligations arising thereunder in such form as
the Owner may prescribe with such sureties as he may approve. If
such bond is required by instructions given previous to the
submission of bids, the premium shall be paid by the Contractor; if
subsequent thereto, it shall be paid by the Owner. "
Page 285 U. S. 175
"Obligations of Bondsmen. -- The Contractor's bondsmen shall
obligate themselves to all the terms and covenants of these
specifications, and of the contracts covering the work executed
hereunder, and the Owner and the Architect reserve the right to
make all desired changes, alterations, and additions, under the
conditions and in the manner hereinbefore described, without in any
measure affecting the liability of the bondsmen or releasing them
from any of their obligations hereunder."
October 20, 1926, the Burkes gave a bond for $316,822, payable
to the investment company with appellant as surety. Among other
things, this provides:
"Whereas, the Principal and the Obligee have entered into a
certain written contract (hereinafter called the contract) dated
October 18th, 1926, to construct 'Eola Hotel' building as per plans
and specifications No. 640 as prepared by Weiss & Dreyfus,
Architects, New Orleans, La. a copy of which is or may be attached
hereto, and is hereby referred to and made a part hereof. Now
therefore the condition of this obligation is such that, if the
principal shall indemnify the obligee against loss or damage
directly caused by the failure of the principal faithfully to
perform the contract, then this obligation shall be null and void;
otherwise it shall remain in force; provided, however, this bond is
executed by the surety, upon the following express conditions,
which shall be precedent to the right of recovery hereunder."
"* * * *"
"11. No right or action shall accrue upon or by reason hereof to
or for the use or benefit of any one other than the obligee named
herein, and the obligation of the surety is and shall be construed
strictly as one of suretyship only."
Payments to the contractors were made as required by the
building contract, but they failed to satisfy claims for material
furnished by Bunn Electric Company and others. The latter notified
the investment company. Thereupon,
Page 285 U. S. 176
it instituted a proceeding in the chancery court, Adams County,
Mississippi, against the contractors, the appellant Hartford
Accident & Indemnity Company, and many unpaid materialmen. The
bill prayed for a decree declaring the indemnity bond to be one for
faithful performance of the building contract, and subject to the
rights and liabilities provided by § 3, *
Mississippi Laws of 1918 (§ 2598, Hemingway's Miss.Code 1927); also
for judgments in favor of those who had furnished materials,
The materialmen answered. Also, by cross-bill and interventions,
they set up their claims and asked for judgments against the
contractors and appellant here, surety upon the bond. The
chancellor gave judgments in favor of the cross-complainants as
prayed. The indemnity company appealed. The Supreme Court approved
upon the view that § 3, c. 128, Mississippi Laws 1918, applied and
controlled the obligation of the bond. Hartford Accident &
Indemnity Co. v. Natchez Inv. Co.,
132 So. 535. It ordered
that the materialmen severally
"do have and recover of and from the appellant Hartford Accident
& Indemnity Company, and of Aetna Casualty & Surety
Page 285 U. S. 177
Company, surety in the appeal bond,"
the sums found to be due them.
Upon petition of the Hartford Accident & Indemnity Company
alone, the Chief Justice of Mississippi allowed an appeal to this
Court July 25, 1931. The Aetna Casualty & Surety Company did
not join in the appeal; there was no summons and severance, nor any
notice equivalent thereto.
The assignment of errors challenges the validity, under the
Federal Constitution, of § 3, c. 128, Mississippi Laws, above
cited, as construed and applied.
December 4, 1931, the appellees entered a motion here to dismiss
the appeal. They maintain that the judgments in the Mississippi
Supreme Court against appellant and Aetna Casualty & Surety
Company were joint; the latter company did not join in the appeal;
there was no summons and severance; consequently, this Court is
December 23, 1931, appellant and the Aetna Company asked that
the latter be made party to the appeal, and for proper amendments
to that end.
The motion to amend must be overruled. The motion to dismiss is
The challenged judgment became final June 15, 1931, more than
six months before the Aetna Company applied here for permission to
become a party to the pending appeal. If this application and the
accompanying motion to amend were granted, the practical effect
would be to permit an appeal by a party to a judgment after the
prescribed time had expired.
The statute (Act of Feb. 13, 1925, c. 229, § 8, 43 Stat. 940)
"No writ of error, appeal, or writ of certiorari intended to
bring any judgment or decree before the Supreme Court for
Page 285 U. S. 178
shall be allowed or entertained unless application therefor be
duly made within three months after the entry of such judgment or
decree. . . ."
Passage of the three-months' period extinguished the right to
grant an appeal. Rust Land & Lumber Co. v. Jackson,
250 U. S. 71
250 U. S. 76
Toledo Scale Co. v. Computing Scale Co., 261 U.
, 261 U. S.
The judgment is joint in form, and no reason appears why either
or both of the parties defendant therein might not have appealed to
this Court and submitted claims of error for our determination. In
matters of this kind, we may not disregard the face of the record
and treat the judgment as something other than it appears to be. So
to do probably would lead to much confusion and uncertainty.
Haseltine v. Central Nat. Bank, 183 U.
, 183 U. S.
"We have frequently held that a judgment reversing that of the
court below, and remanding the case for further proceedings is not
one to which a writ of error will lie. . . . While the judgment may
dispose of the case as presented, it is impossible to anticipate
its ultimate disposition. It may be voluntarily discontinued, or it
may happen that the defeated party may amend his pleading by
supplying some discovered defect, and go to trial upon new
evidence. To determine whether, in a particular case, this may or
may not be done might involve an examination not only of the
record, but even of the evidence in the court of original
jurisdiction, and lead to inquiries with regard to the actual final
disposition of the case by the supreme court which it might be
difficult to answer. We have therefore always made the face of the
judgment the test of its finality, and refused to inquire whether,
in case of a new trial, the defeated party would stand in a
position to make a better case. The plaintiffs in the case under
consideration could have secured an immediate review by this Court,
Page 285 U. S. 179
Court, as a part of its judgment of reversal, had ordered the
circuit court to dismiss their petition when, under
], they might have sued out a writ of error at once."
Norfolk Turnpike Co. v. Virginia, 225 U.
, 225 U. S.
-269. The question was: to which state court should
the writ of error run? This Court said:
"The difference between the cases, however, is not one of
principle, but solely depends upon the significance to be
attributed to the particular form in which the action of the court
below is manifested. In other words, the apparent want of harmony
between the rulings of this Court has undoubtedly arisen from the
varying forms in which state courts have expressed their action in
refusing to entertain an appeal from or to allow a writ of error to
a lower court, and the ever-present desire of this Court to so
shape its action as to give effect to the decisions of the courts
of last resort of the several states on a subject peculiarly within
their final cognizance. A like want of harmony resulted from
similar conditions involved in determining what was a final
judgment of a state court, susceptible of being reviewed here, and
the confusion which arose ultimately led to the ruling that the
face of the judgment would be the criterion resorted to as the only
available means of obviating the great risk of confusion which
would inevitably arise from departing from the face of the record
and deducing the principle of finality by a consideration of
questions beyond the face of the alleged judgment or decree which
was sought to be reviewed. The wisdom of that rule, as applied to a
question like the one before us, is, we think, apparent by the
statement which we have made concerning the rule in the
], and the previous decisions."
See Estis v. Trabue, 128 U. S. 225
128 U. S. 229
Schlosser v. Hemphill, 198 U. S. 173
198 U. S. 175
Louisiana Navigation Co. v. Oyster Commission,
226 U. S. 99
226 U. S. 101
Page 285 U. S. 180
v. First Nat. Bank, 242 U. S. 600
242 U. S. 602
Bruce v. Tobin, 245 U. S. 18
245 U. S. 19
Matthews v. Huwe, 269 U. S. 262
269 U. S.
10 Wall. 416, 77 U. S. 417
"It is the established doctrine of this Court that, in cases at
law, where the judgment is joint, all the parties against whom it
is rendered must join in the writ of error, and in chancery cases,
all the parties against whom a joint decree is rendered must join
in the appeal or they will be dismissed. There are two reasons for
this: 1. That the successful party may be at liberty to proceed in
the enforcement of his judgment or decree against the parties who
do not desire to have it reviewed. 2. That the appellate tribunal
shall not be required to decide a second or third time the same
question on the same record. . . . One of the effects of this
judgment of severance was to bar the party who refused to proceed,
from prosecuting the same right in another action, as the defendant
could not be harassed by two separate actions on a joint
obligation, or on account of the same cause of action, it being
joint in its nature."
In Estis v. Trabue, 128 U. S. 225
attachment was levied upon certain personalty. After the return,
Estis, Doan & Co. claimed the property and they gave a
forthcoming bond with two sureties. The challenged judgment
"that the plaintiffs recover of the claimants and C. F. Robinson
and John W. Dillard, their sureties in their forthcoming bond, the
sum of six thousand and three hundred dollars, together with the
This Court held:
"The judgment is distinctly one against 'the claimants, and C.
F. Robinson and John W. Dillard, their sureties in their
forthcoming bond,' jointly, for a definite sum of money. There is
nothing distributive in the judgment, so that it can be regarded as
containing a separate judgment against the claimants and another
separate judgment against the sureties, or as containing a judgment
against the sureties payable and enforceable
Page 285 U. S. 181
only on a failure to recover the amount from the claimants, and
execution is awarded against all of the parties jointly. In such a
case, the sureties have the right to a writ of error.
21 Wall. 235, 88 U. S.
. It is well settled that all the parties against
whom a judgment of this kind is entered must join in a writ of
error, if any one of them takes out such writ; or else there must
be a proper summons and severance in order to allow of the
prosecution of the writ by any less than the whole number of the
defendants against whom the judgment is entered."
Mason v. United States, 136 U.
. A postmaster and the sureties on his official
bond were sued jointly. He and some of the sureties appeared and
defended. The suit was abated as to two of the sureties, who had
died. The others defaulted, and judgment of default went against
them. On the trial, there was a verdict for the plaintiff,
whereupon, July 14, 1886, judgment was entered against the
principal and all the sureties. The sureties who had appeared sued
out a writ of error to this judgment, without joining the principal
or the sureties who had made default and the record came here. May
5, 1890, and after expiration of the two years within which the
statute then permitted the suing out of such writs, the plaintiff
in error moved to amend the writ by adding the omitted parties as
complainants, or for a severance of the parties, and it was held
that the motion must be denied, and the writ of error be
Hardee v. Wilson, 146 U. S. 179
146 U. S. 180
cited earlier cases and declared: "Undoubtedly the general rule is
that all the parties defendant, where the decree is a joint one,
must join in the appeal." See also Davis v. Mercantile Trust
Co., 152 U. S. 590
Garcia v. Vela, 216 U. S. 598
216 U. S. 601
Hughes' Federal Practice, § 6153.
The New York,
104 F. 561, 562 (Court of Appeals, Sixth
Circuit, October 13, 1900), is said to support the view that, in
the circumstances here presented, summons and severance
Page 285 U. S. 182
was unnecessary. The proceeding was a cause in admiralty. The
surety upon a stipulation for release of the vessel did not join in
the appeal. Upon motion to dismiss, the court said:
"It is well settled that all parties against whom a joint
judgment or decree is rendered must join in proceedings for review
in an appellate court, or that it must appear that those who have
not joined had notice of the application for the appeal or writ of
error, and refused or neglected to join therein."
But it ruled that, though joint in form, the decree was
separable in law and fact, and therefore the surety was not a
necessary party to the appeal.
Considering former opinions of this Court and the long
established practice, we cannot accept as applicable to appeals
here the doctrine approved in The New York.
It is out of
harmony with Estis v. Trabue, supra,
and other cases cited
above. We cannot undertake to explore the record to ascertain what
issues were relied upon in courts below. So to do would lead to
uncertainty and unfortunate confusion. We must accept the terms of
the judgment as entered. As pointed out above, this is the approved
practice when it becomes necessary to determine whether a judgment
is final or to what court a writ of error should run. Like reasons
apply and control here.
The appeal must be dismissed.
* Chapter 128, Mississippi Laws of 1918.
"Sec. 3. That, when any contractor or subcontractor entering
into a formal contract with any person, firm or corporation for the
construction of any building or work or the doing of any repairs,
shall enter into a bond with such person, firm or corporation
guaranteeing the faithful performance of such contract and
containing such provisions and penalties as the parties thereto may
insert therein, such bond shall also be subject to the additional
obligations that such contractor or subcontractor shall promptly
make payments to all persons furnishing labor or material under
said contract, and in the event such bond does not contain any such
provisions for the payment of the claims of persons furnishing
labor or material under said contract, such bond shall nevertheless
inure to the benefit of such person furnishing labor or material
under said contract, the same as if such stipulation had been
incorporated in said bond. . . ."