Where a motion is made to docket and dismiss a case under the
43d Rule of this Court, the certificate of the clerk of the court
below upon which the motion is founded must state the names of the
parties to the suit. It is not enough to say "Joseph W. Clark and
others." The names of the "others" ought to be set forth.
A motion was made by Mr. Woodbury to docket and dismiss this
case under the 43d rule of this Court. The case purported to be an
appeal from the Circuit Court of the United States for the District
of Massachusetts. The certificate of the clerk of the circuit court
is set forth in the order passed by this Court, and to be found at
the end of this report. It is therefore, unnecessary to repeat
it.
MR. CHIEF JUSTICE TANEY delivered the opinion of the Court.
A motion has been made to docket and dismiss this case under the
43d rule of this Court.
The certificate of the clerk states that in the Circuit Court of
Massachusetts in a cause depending in that court in which Francis
O. J. Smith was complainant in equity and Joseph W. Clark and
others were respondents, a final decree in that court was made on
17 October, 1850, in favor of the said Joseph W. Clark and others,
respondents, from which the said Francis O. J. Smith appealed on
the same day, and on 30 October filed his appeal bond with
sureties, whereby execution on the decree was suspended.
The certificate conforms to the rule in all respects but one,
and that is in the statement of the parties. The respondents are
stated to be Joseph W. Clark and others, from which, as well as
from the statement in the motion, it appears that there were other
respondents parties to the suit who are not named in the
certificate.
The 43d rule provides
"That where the party against whom a judgment or decree is
rendered fails to file the record and docket the case within the
time limited by the rule, the other party may
Page 53 U. S. 22
docket the case and file a copy of the record with the clerk, in
which case it shall stand for argument at the term, or he may at
his election have the case docketed and dismissed upon producing a
certificate from the clerk stating the cause and certifying that
such a writ of error or appeal had been duly sued out and
allowed."
Now where the unsuccessful party brings a writ of error, all the
parties to it must be named in the writ, and the name of one or
more of them "and others" is not a sufficient description to bring
those not named before the court. It was so decided in
Deneale v. Stump's
Executors, 8 Pet. 526. And the same principle was
applied to a writ of error docketed under the 43d Rule in the case
of
Holyday v.
Batson, 4 How. 645. And the reason for requiring
all the parties whose interests are to be affected by the judgment
to be named in the writ of error applies with equal force to the
case of an appeal from a decree.
Where the party, in proceeding under the 43d Rule, elects to
file the record and try the cause, the record must certainly be as
full and complete as the one which would be required from the
opposing party. It must name all the persons which the writ of
error or appeal is intended to bring before the court; otherwise
there could be no judgment or decree for or against them.
And upon the same ground, the same thing must be done when the
case is docketed in order to obtain a judgment of dismissal. The
proceeding is in the nature of a writ of error or appeal, in which
the party in whose favor the judgment or decree was rendered is
allowed to bring the case before this Court in order to prevent
unnecessary delay. And all the parties to the judgment or decree
whose interests are to be affected by docketing and dismissing the
suit are regarded as in court for the purpose of being parties to
the judgment of dismissal. Nor could the circuit court regularly
issue an execution for or against a person not named, as it would
not appear that he had been a party to the proceeding here or that
there had been a judgment of dismissal for or against him.
The rule of which we are speaking was framed upon this
principle: it requires that the certificate of the clerk should
"state the cause," and this is not done unless the parties to it
are named.
A departure from the rule might lead to very loose practice, and
perhaps to abuses. We think it more safe to adhere to the
established practice in this respect, and have used this occasion
to state it the more fully in order that the members of the bar and
the clerks of the courts may in future avoid mistake.
The motion to docket and dismiss in this case is
overruled.
Page 53 U. S. 23
Order
Francis O. J. Smith, Appellant v. Joseph W. Clark et
al.
Mr. Woodbury, having filed and read the following certificate,
viz.: :
"United States of America"
"Massachusetts District"
"I, Isaac O. Barnes, Clerk of the Circuit Court of the United
States for the First Circuit and District of Massachusetts, do
hereby certify, that in a certain cause pending in said court
wherein Francis O. J. Smith was complainant, in equity, and Joseph
W. Clark, were respondents, a final decree in said cause was made
by the court on the seventeenth day of October, A.D. 1850, in favor
of the said Joseph W. Clark, respondents, as aforesaid -- whereupon
an appeal was prayed by the said Francis O. J. Smith, complainant,
as aforesaid, on the said seventeenth day of October, A.D. 1850,
and, on the thirtieth day of said October, A.D. 1850, the said
Francis O. J. Smith, complainant, as aforesaid, filed a bond with
sureties in the sum of one thousand dollars. And thereupon the
execution of the said final decree was suspended, and the said
appeal has operated as a supersedeas in said cause."
[Seal]
"In testimony whereof I have hereunto set my hand and affixed
the seal of the said Circuit Court at Boston this thirtieth day of
December, A.D. 1851, and the independence of the United States of
America the seventy-sixth."
"ISAAC O. BARNES,
Clerk"
"now here moved the court to docket and dismiss this appeal
under the 43d Rule of this Court. On consideration whereof, it is
the opinion of this Court that the titling of the case in the
certificate is too vague and uncertain. Whereupon it is now here
ordered by the Court that the said motion be, and the same is
hereby overruled."