After the decree of the circuit court, an appeal was claimed by
all the defendants and allowed by the court. A part of the
defendants, who had originally claimed the appeal before any
further proceedings abandoned it, and the residue of them,
excepting Todd, have, since the appeal was filed, abandoned it, and
Todd only has entered his appearance in the Supreme Court. The
record stood in the names of all the appellants. A motion was made
to dismiss the appeal for irregularity and want of jurisdiction on
the ground that it cannot be maintained in behalf of Todd alone.
The court refused to dismiss the appeal.
The proper rule in cases of this sort, where there are various
defendants, seems to be that all the defendants affected by a joint
decree (although it may be otherwise where the defendants have
separate and distinct interests and the decree is several, and does
not jointly affect all) should be joined in the appeal, and if any
of them refuses or declines upon notice and process (in the nature
of a summons, and severance in a writ of error) to be issued in the
court below to become parties to the appeal, then that the other
defendants should be at liberty to prosecute the appeal for
themselves and upon their own account, and the appeal as to the
others be pronounced to be deserted, and the decree of the court
below as to them be proceeded in and executed.
Davies for the appellee, moved to dismiss the appeal. He stated,
that the appeal had been actually entered in the circuit court in
the names of the appellants mentioned on the record, but that there
were other defendants in the circuit court against whom the decree
had been rendered who had not joined in the appeal, not having had
any regular notice of such appeal. They were Hayes, Gouch and
Westcott. Of the above-named appellants, James Todd alone enters
his appearance here, by his counsel, Francis O. J. Smith, Esq., who
now brings up the record and proposes to prosecute the appeal on
behalf of Todd in this Court singly, without any of the rest,
Page 41 U. S. 522
whose names, however (appearing in the record as appellants),
are extended on the docket by the clerk.
The counsel for Todd, by writing filed in the case here February
16, disclaims and disavows any and all appearance for either of the
other defendants named as appellants. The other defendants who
joined in the appeal have subsequently abandoned any further
prosecution of it, and have given notice to the complainant's
counsel to that effect, submitting to the decree, and some of them
offering to pay their respective amounts, according to the decree
of the circuit court, the last notice by the Mitchells being dated
January 28, 1842, at which time the appeal here had not been
entered nor the record filed.
STORY, JUSTICE, delivered the opinion of the Court.
This is an appeal from the decree of the Circuit Court for the
District of Maine in a suit in equity in which the appellants were
the original defendants. After the decree was made, an appeal was
claimed by all the defendants and allowed by the court. A part of
the defendants, who originally claimed the appeal, before any
further proceedings, abandoned their appeal, and the residue of
them, excepting Todd, have, since the session of this Court
abandoned their appeal, and Todd only has entered his appearance.
But the record stands in the names of all the defendants as parties
appellant. Under these circumstances, the counsel for the appellee
has moved the court to dismiss the appeal for irregularity and want
of jurisdiction upon the ground that it cannot be maintained on
behalf of Todd alone.
There is no doubt that, the appeal having been deserted by
all
Page 41 U. S. 523
the original defendants, except Todd, it must be dismissed with
costs as to them; but as to Todd very different considerations must
arise. He seeks to reverse the decree in the court below as
erroneous in regard to himself, and the question is whether he is
not entitled to maintain the appeal separately, for his own
interest although it is deserted by all the other defendants. We
think that he is; otherwise an irreparable injury might be
inflicted upon him by an erroneous decree for which the law would
not afford him any redress. The decree in this case is, in fact,
against him as principal, and against the other defendants in aid
of him for distinct portions of the purchase money received by them
under the contract of sale made by Todd and stated in the bill and
answer. The decree may be entirely right in regard to the other
defendants and yet it may be erroneous as to Todd. He has or at
least may have a distinct and independent interest in the
controversy in respect to which he is entitled to be heard in this
Court.
The proper rule in cases of this sort, where there are various
defendants, seems to be that all the defendants affected by a joint
decree (although it may be otherwise where the defendants have
separate and distinct interests and the decree is several and does
not jointly affect all) should be joined in the appeal, and if any
of them refuses or declines, upon notice and process (in the nature
of a summons and severance in a writ of error), to be issued in the
court below, to become parties to the appeal, then that the other
defendants should be at liberty to prosecute the appeal for
themselves and upon their own account, and the appeal as to the
others be pronounced to be deserted, and the decree of the court
below as to them be proceeded in and executed. In the present case,
what has occurred is equivalent to such proceedings. All the
defendants originally claimed an appeal; some of them have declined
to pursue it at all; others have deserted it since it was pending
in this Court, and therefore there is no pretense to say that any
practical inconvenience can occur from Todd's now prosecuting it
alone, and since the other defendants have all had notice and
declined to interfere and are content to abide by the original
decree.
In the case of
Cox v. United
States, 6 Pet. 172, no doubt was entertained by
this Court that a writ of error might
Page 41 U. S. 524
be maintained by the defendants severally where the judgment
operated, under the laws of Louisiana, as a several as well as
joint judgment, although they might have united in the writ of
error, and if anyone choose not to prosecute it, the others might,
upon a summons and severance, proceed alone.
The case of
Owings v.
Kincannon, 7 Pet. 399, seems to have been
misunderstood at the bar. The objection in that case was not that
one or more of the defendants might not pursue an appeal for their
own interest if the others refused to join in it upon due notice
and process for that purpose from the circuit court, but that it
did not appear that all the defendants were not ready and willing
to join in the appeal, and that the appeal was brought by some of
the appellants without giving the others an opportunity of joining
in it for the protection of their own interest not only against the
appellee, but against the appellants, as their own interests might
be distinct from, or even adverse to, that of the appellants, and
it was right and proper that all the parties should have an
opportunity of appearing before the court, so that one final
decree, binding upon all the parties having a common interest,
might be pronounced.
Upon the whole, therefore, our opinion is that the appeal must
be dismissed with costs against all the defendants except Todd, and
as to him it is to be retained for a hearing upon the merits.
Ordered accordingly.
