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."
MR. JUSTICE MILLER, after stating that a careful examination of
the record satisfied the Court that the decree was a joint decree
and that the appeal was clearly taken by Herndon alone, delivered
its opinion as follows:
It is the established doctrine of this Court that in cases
at
Page 77 U. S. 417
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.
[
Footnote 1]
In the case of
Williams v. Bank of the United States,
[
Footnote 2] the Court said
that where one of the parties refuses to join in a writ of error,
it is worthy of consideration whether the other may not have remedy
by summons and severance, and in the case of
Todd v.
Daniel, [
Footnote 3] it is
said distinctly that such is the proper course. This remedy is one
which has fallen into disuse in modern practice, and is unfamiliar
to the profession; but it was, as we find from an examination of
the books, allowed generally when more than one person was
interested jointly in a cause of action or other proceeding and one
of them refused to participate in the legal assertion of the joint
rights involved in the matter. In such case, the other party issued
a writ of summons, by which the one who refused to proceed was
brought before the court, and if he still refused, an order or
judgment of severance was made by the court whereby the party who
wished to do so could sue alone. 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. [
Footnote 4] This
remedy was applied to cases
Page 77 U. S. 418
of writs of error when one of the plaintiffs refused to join in
assigning errors, and in principle is no doubt as applicable to
cases where there is a refusal to join in obtaining a writ of error
or in an appeal. The appellant in this case seems to have been
conscious that something of the kind was necessary, for it is
alleged in his petition to the circuit court for an appeal that
Maverick refused to prosecute the appeal with him.
We do not attach importance to the technical mode of proceeding
called summons and severance. We should have held this appeal good
if it had appeared in any way by the record that Maverick had been
notified in writing to appear, and that he had failed to appear,
or, if appearing, had refused to join. But the mere allegation of
his refusal in the petition of appellant does not prove this. We
think there should be a written notice and due service or the
record should show his appearance and refusal, and that the court
on that ground granted an appeal to the party who prayed for it, as
to his own interest. Such a proceeding would remove the objections
made to permitting one to appeal without joining the other -- that
is, it would enable the court below to execute its decree so far as
it could be executed on the party who refused to join, and it would
estop that party from bringing another appeal for the same matter.
The latter point is one to which this Court has always attached
much importance, and it has strictly adhered to the rule under
which this case must be dismissed, and also to the general
proposition that no decree can be appealed from which is not final
in the sense of disposing of the whole matter in controversy, so
far as it has been possible to adhere to it without hazarding the
substantial rights of parties interested. We dismiss this appeal
with the less regret as there is still time to obtain another on
proceedings not liable to the objection taken to this.
Appeal dismissed.
[
Footnote 1]
Williams v. Bank of the United
States, 11 Wheat. 414;
Owings v.
Kincannon, 7 Pet. 399;
Heirs of
Wilson v. Insurance Co., 12 Pet. 140.
[
Footnote 2]
The case first cited
supra.
[
Footnote 3]
41 U. S. 16 Pet.
521.
[
Footnote 4]
Brooke's Abridgment 238, tit. "Summons and Severance;" 2 Rolle's
Abridgment, same title, 488; Archbold's Civil Pleadings 54; Tidd's
Practice 129, 1136, 1169.