In certain proceedings for the sale of property mortgaged, the
widow and children of the deceased owner of the property were made
defendants. The District Court of Louisiana gave a judgment in
favor of the plaintiffs. The widow was entitled to her community in
the property mortgaged, and had taken the property at the
appraisement and estimation. The writ of error to the District
Court of Louisiana was issued in the name of "The heirs of Nicholas
Wilson," without naming any person as plaintiff. The widow of
Nicholas Wilson did not join in the writ of error. The writ of
error was dismissed on the two grounds: that no person was named in
it and that the widow of Nicholas Wilson had not joined in it.
The rule of court is that where there is a substantial defect in
the appeal or writ of error, the objection may be taken at any time
before the judgment on the ground that the case is not legally
before the court, and that it has not jurisdiction to try it.
The cases of
Deneale v. Stump's Executors 8
Pet. 526; and,
Owings v.
Kincannon, 7 Pet. 399, cited.
MR. CHIEF JUSTICE TANEY delivered the opinion of the Court.
The proceedings in this case were instituted in the District
Court for the Eastern District of Louisiana for the purpose of
procuring the sale of certain property mortgaged by Nicholas Wilson
in his lifetime to the Life and Fire Insurance Company of New York.
The widow and children of the deceased were made defendants in the
petition, and the judgment in the district court was in favor of
the plaintiffs. The widow, it appears, was entitled to her
community
Page 37 U. S. 141
in the property mortgaged, and had taken the property of the
deceased, as she had a right to do, at the appraisement and
estimation.
The counsel for the defendant in error has moved to dismiss this
case 1st, because no persons are named as plaintiffs in the writ of
error, but they are described generally in the writ as "The Heirs
of Nicholas Wilson;" 2dly, if this general description is
sufficient, yet it appears by the petition for the writ, which is
referred to in the appeal bond, that the widow did not join in the
application for the writ of error, and as the judgment against the
defendants was a joint one, they must all join in a writ of error
unless there is a summons and severance.
We think the writ of error must be dismissed on both grounds,
and that the points raised have already been decided by this
Court.
In the case in
33 U. S. 8 Pet.
526, the writ of error issued in the name of "Mary Deneale,
executrix of George Deneale and others." It was dismissed on the
motion of the defendants in error, and the Court said,
"The present writ of error is brought by Mary Deneale 'and
others' as plaintiffs, but who the others are cannot be known to
the Court, for their names are not given in the writ of error as
they ought to be. Mary Deneale cannot alone maintain a writ of
error on this judgment, but all the parties must be joined and
their names set forth in order that the Court may proceed to give a
proper judgment in the case."
In the case now before the Court, the name of no one of the
parties is set forth in the writ of error, and according to the
rule laid down in the case referred to, this writ of error cannot
be maintained.
The second objection above stated falls within the principle
decided in
Owings v.
Kincannon, 7 Pet. 399. In that case, a joint decree
was passed by the Circuit Court for the District of Kentucky
against six defendants. An appeal was prayed generally from the
decree, but in the appeal bond it was stated that two had prayed an
appeal, and nothing was there said of the others. The Court
considered the statement in the bond as explaining the general
entry granting the appeal, and dismissed the case because all of
the defendants in the court below had not joined in it.
In the case before the Court, if the omission to name the
plaintiffs in error in the writ was not regarded as an insuperable
objection, and if the general description of "The Heirs of Nicholas
Wilson" could be supposed under the laws of Louisiana to include
his widow, yet the statement in the petition for the writ of error
which is referred
Page 37 U. S. 142
to in the bond would explain the general description in the
writ, and bring this case within the principle decided in
Owings v. Kincannon.
In both of the cases referred to, it appears that the motions to
dismiss were not made at the first term, or at the time of
appearance in this Court, but each of the cases had been depending
here two years before the motion was made. The rule of this Court
therefore is that where there is a substantial defect in the appeal
or writ of error, the objection may be taken at any time before
judgment on the ground that the case is not legally before us, and
that we have not jurisdiction to try it. It follows that the writ
of error in the case under consideration must be
Dismissed.
MR. JUSTICE BALDWIN dissented.
On consideration of the motion made in this cause by Mr. Butler
to dismiss this case for irregularity, on the ground that the writ
of error does not set forth the names of all the parties and of the
arguments of counsel thereupon had, as well in support of as
against the motion, it is now here ordered and adjudged by this
Court that this writ of error to the District Court of the United
States for the Eastern District of Louisiana be and the same is
hereby dismissed and that it be so certified to the said district
court.