dismissed because taken in the name of
William A. Freeborn & Co.,
the court holding that no
difference existed between writs of error and appeals as to the
manner in which the names of the parties should be set forth.
By the 22d section of the Judiciary Act it is enacted that
decrees in civil actions may be brought here by writ of
By the 32d section of the act it is enacted:
"That no summons, writ, declaration, return, process, judgment,
or other proceeding
in civil causes in any of the courts
of the United States, shall be abated, arrested, quashed,
or reversed, for any defect or want of form, but the said courts
respectively shall proceed and give judgment according as the right
of the cause and matter in law shall appear unto them, without
regarding any imperfections, defects, or want of form in such writ,
declaration, or other pleadings, return, process, judgment, or
course of proceeding whatsoever, except those only in cases of
demurrer which the party demurring shall specially set down. . . .
And the said courts respectively shall and may . . . from time to
time amend all and every such imperfection, defect, and want of
form, except &c., and may at any time permit either of the
parties to amend any defect in the process or pleadings,
such conditions as the said courts respectively shall in their
discretion and by their rules prescribe."
An Act of March 3, 1803, enacts that decrees in admiralty must,
if brought here, be brought by appeal,
"Such appeals shall be subject to the same
regulations, and restrictions,
as are presented in law in
cases of writs of error,
and that the said Supreme Court
shall be and hereby is authorized and required to receive, hear,
and determine such appeals."
In this state of statutory law William A. Freeborn, James F.
Freeborn, and Henry P. Gardner, of the city of New
Page 78 U. S. 83
York, merchants, filed a libel in the District Court for the
Southern District of Alabama against the ship Protector.
That court dismissed the libel "at the costs of the libellants, and
ordered execution therefor to issue against the libellants." This
decree was confirmed by the circuit court. An appeal was then taken
to this Court. The petition for appeal was entitled William A.
Freeborn & Co.,
and prayed for an appeal in the name
of William A. Freeborn & Co.
The allowance of the
appeal was in the same name and style. The bond recited the appeal
in the name of William A. Freeborn & Company.
citation also directed the party to appear in the cause wherein
William A. Freeborn & Company
Who constituted the Co. or Company, nowhere appeared in the
proceedings on appeal.
Page 78 U. S. 86
MR. JUSTICE NELSON had thus delivered it:
The motion made by the appellees to dismiss the case from the
docket for want of jurisdiction, is grounded upon a defect of the
title of the parties in the appeal as allowed. The title is,
"William A. Freeborn & Co. v. Ship Protector and
This defect in a writ of error has been held fatal to
the jurisdiction of the Court since the case of Deneale v.
] down to the present time. [Footnote 2
] Nor can the writ be amended, according to
repeated decisions of this Court. [Footnote 3
] The only question before us is, whether the
same rule applies to appeals in admiralty. Originally, decrees in
equity and admiralty were brought here for reexamination by a writ
of error, under the twenty-second section of the Judiciary Act.
This was changed by the act of March 3, 1803, by which appeals were
substituted in place of the writs of error in cases of equity,
admiralty, and prize; but the act
Page 78 U. S. 87
provides "that the appeals shall be subject to the same rules,
regulations, and restrictions as are prescribed in law in cases of
writs of error."
In Owings v. Andrew Kincannon,
] the appeal was dismissed because all the
parties to the decree below had not joined in it. Chief Justice
Marshall, in delivering the opinion of the Court, referred to the
case of Williams v. Bank of the United States,
] which was a writ of error,
where it was held that all the defendants must join, and applied
the same rule to the ease of an appeal. He cited the act of 1803,
and observed that
"the language of the act which gives the appeal appears to us to
require that it should be prosecuted by the same parties who would
have been necessary in a writ of error."
But the case of Francis O. J. Smith v. Joseph W. Clark,
] is more direct to
the point before us. It was a motion to docket and dismiss in the
case of an appeal under the 43d rule of the Court. The certificate
of the clerk, upon which it was founded, described the parties as
in the title above. Chief Justice Taney, in giving the opinion of
the court, stated that the certificate conformed to the rule in all
respects but one, and that was in the statement of the parties. The
respondents were stated to be Joseph W. Clarke and others,
from which it appeared that there were other respondents, parties
to the suit, who were not named in the certificate. He then
referred to the case of a writ of error, [Footnote 7
] where it was held that all the parties must
be named in the writ, and the name of one or more of them, and
were not a sufficient description, and also to the
case of Holliday v. Baston,
] where the same principle was applied to a writ
of error docketed under the 43d rule, and observed the same reason
for requiring all the parties whose interests were to be affected
by the judgment, to be named in the writ of error, applied with
equal force to the case of an appeal from a decree. And the motion
to docket and dismiss for the above defect was overruled. The
opinion of the court in the present case is, that no distinction in
Page 78 U. S. 88
to the question before us can be made between the case of an
appeal under the act of 1803, and of a writ of error; and that the
decisions referred to directing the dismissal of the latter from
the docket for want of jurisdiction, apply with equal force to the
former. This result disposes of the motions on the part of the
appellant to amend the petition of appeal, citation, and bond, and
also the motion to amend the libel.
Motion to dismiss granted.
33 U. S. 8
Heirs of Wilson v. Life &
Fire Insurance Company of New York,
12 Pet. 140;
Smyth v. Pevine &
12 How. 327; Davenport
16 How. 142.
21 How. 393; Hodge v.
22 How. 87.
32 U. S. 7
24 U. S. 11
53 U. S. 12
8 Pet. 526.
45 U. S. 4
MR. JUSTICE SWAYNE (with whom concurred MR. JUSTICE BRADLEY)
I dissent from the conclusions announced by the court in this
case. The defect objected to is, in my judgment, amendable under
the 32d section of the Judiciary Act of 1789, and I think an
amendment should be permitted to be made.