The doctrine settled in
Williams v.
Bank, 11 Wheat. 414, and declared in
Masterson v.
Herndon, 10 Wall. 416, to be "the established
doctrine of the Court" -- that 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 -- again adjudged.
Carlos Greeley sued William A. Simpson and eight other persons
in one of the county courts of Kansas to recover
Page 87 U. S. 153
certain lands, together with damages for the detention of them;
and for waste committed by the whole nine.
The nine defendants filed a joint answer.
The plaintiff replied, and after a trial, judgment was
given:
"That the plaintiffs have and recover of and
from said
defendants the lands and tenements described in the
declaration; that they also have and recover of the said William A.
Simpson the sum of $4,300, the value of the rents, issues, and
profits of said lands and tenements, and for the timber taken from
said land by the said defendant; that the plaintiffs also have and
recover of
the other defendants the sum of $2,600, to be
credited as part of the said $4,300, if collected, it being the
value of the rents above found."
Simpson -- none of his co-defendants joining -- filed a petition
in error to the Supreme Court of Kansas alleging that the consent
of none of his co-defendants could be obtained to join him in the
proceeding. However, very soon afterwards they all did file a
petition in error just like his own, and praying that the judgment
rendered against them be reversed for the causes and reasons set
forth in his petition. The Supreme Court of Kansas affirmed the
judgment, and a mandate was issued out of that court reciting,
"That a judgment in a certain civil action, wherein
Carlos
Greeley et al. were plaintiffs, and
William A. Simpson et
al. were defendants, was rendered by the latter court in favor
of the said
Greeley et al., on a transcript of which
judgment and record said
Simpson et al. prosecuted a
petition in error to the Supreme Court within and for the State of
Kansas."
From this judgment of the supreme court of the state, Simpson
alone took this writ of error, assigning no cause why the
others were not joined.
Page 87 U. S. 154
MR. JUSTICE CLIFFORD delivered the opinion of the Court.
Fee simple title is claimed by the present defendants to the
several tracts of land described in the declaration, and they
commenced an action of ejectment to recover the possession of the
same, and for the rents and profits, and for the value of certain
timber which, as they allege, the defendants have cut thereon and
converted to their own use.
Eight other persons besides the present plaintiff were joined as
defendants in the suit, and they were all duly served with process
and appeared and made defense in the First District Court of the
state, where the writ was returnable.
Two defenses were set up, as follows: (1) they, the defendants,
denied every allegation and averment of the declaration; (2) they
pleaded that the title to the several tracts of land was in William
A. Simpson; that he acquired the same in the manner and by the
means circumstantially set forth in their second plea, and that the
other defendants are in the possession of the said several tracts
as tenants of the said Simpson, and have large and valuable crops
growing thereon, and that they hold the same by lease from the
actual owner of the title. Wherefore they, the defendants, pray and
demand judgment against the plaintiffs, and that the plaintiffs be
enjoined and restrained from ever claiming, suing for, or setting
up any title to the said several tracts of land, or either of them,
or any part or portion thereof, and that the pretended estate and
interest of the plaintiffs be determined and wholly held for
naught.
Page 87 U. S. 155
Leave was granted to the plaintiffs by the court to file a
reply, and they did so, as more fully appears in the record, in
which they controvert each and every of the material allegations of
the answer except that the defendants are in the possession of the
premises, and allege that the principal defendant acquired the
possession by wrongful and unlawful means, and reassert their claim
of title, as set forth in the declaration. Subsequently the parties
waived a jury and went to trial before the court. Evidence was
introduced on both sides, and the court made numerous findings of
fact and several conclusions of law. Certain exceptions were also
taken both to the rulings and the findings of the court.
Some delay followed, and both parties having been fully heard,
the court rendered judgment as follows:
"That the plaintiffs have and recover of and from said
defendants the lands and tenements described in the declaration.
That they also have and recover of the said William A. Simpson the
sum of $4,300, the value of the rents, issues, and profits of said
lands and tenements, and for the timber taken from said land by the
said defendant. That the plaintiffs also have and recover of the
other defendants the sum of $2,600, to be credited as part of the
said $4,300, if collected, it being the value of the rents above
found."
Judgment was signed on the 15th of November, 1870, and on the
following day the defendant, William A. Simpson, filed a petition
in error and a transcript of the record in the clerk's office of
the supreme court of the state, in which he represents that the
other defendants, naming each, will not consent to join in the
petition, but the record shows that all the other defendants, on
the 12th of January following, filed a petition in error in the
supreme court, praying that the judgment rendered in the
subordinate court should be reversed for the reasons stated in the
petition of the first petitioner.
Due notice was given by a summons issued under the first
petition to the original plaintiffs and all of the defendants
except the first petitioner that the first petitioner had filed
such a petition and a transcript of the record in the
Page 87 U. S. 156
clerk's office of the state supreme court, but all of the
persons named as defendants in the original writ are also named as
such in the summons issued by the clerk of the state supreme court.
Service of the summons was duly acknowledged by the original
plaintiffs and by all of the eight defendants who did not sign the
first petition in error. Seasonable entry of the case was made in
the supreme court of the state, and the parties having been fully
heard the said supreme court affirmed the decree of the subordinate
court and sent down their mandate commanding the subordinate court
to cause execution to be had of the said judgment of the said
supreme court, according to law.
Early application was made by the present plaintiff to the clerk
of the circuit court of the United States for that district for a
writ of error, under the twenty-fifth section of the Judiciary Act,
to remove the cause into this Court, and the record shows that it
was duly issued and that it was properly allowed by the chief
justice of the state supreme court.
Errors of a material character are assigned by the plaintiff as
reasons for the reversal of the judgment rendered in the state
courts, but it is necessary in the first place to examine the
objection taken by the defendants to the jurisdiction of this
Court, as that objection presents a preliminary question which, if
decided in favor of the defendants, will dispose of the case.
They, the defendants, insist that the writ of error should be
dismissed because one only of the nine defendants in the court
below is made a party in the writ as issued by the clerk of the
circuit court, and because only one of the number has given bond to
prosecute the writ of error with effect, as required by the act of
Congress in such case made and provided.
Where there was a joint judgment against several and one only of
the defendants sued out a writ of error, without joining the
others, it was decided by this Court, Marshall, C.J., giving the
opinion, that it was irregular, and the court
Page 87 U. S. 157
dismissed the writ of error. [
Footnote 1] Subsequently the same rule was applied in a
case where the cause was removed into this Court by appeal, the
opinion of the Court being also given by the Chief Justice.
[
Footnote 2] Reference was made
in the opinion in that case to the former decision, but the Court,
not relying merely on authority, decided that it was correct as
matter of principle that the whole cause ought to be brought before
the Court at the same time, and that all the parties united in
interest ought to unite in the appeal, as appeals are subject to
the same rules, regulations, and restrictions as are prescribed by
law in case of writs of error. Since those decisions were published
the question has frequently been presented to this Court, and has
uniformly been determined in the same way where it appeared that
the interest was joint and that no severance had been effected
either in the judgment or by subsequent summons and severance or by
some proceeding of an equivalent character. [
Footnote 3] Undoubtedly those cases show what the
general rule is, but it is equally well established, where some of
the parties in interest refuse to join in the writ of error or
appeal, that the others are entitled to resort to the process and
proceeding of summons and severance to enable them effectually to
remove the cause from the subordinate court into the appellate
tribunal for reexamination. [
Footnote 4] Cases arise beyond all doubt where only one of
several defendants is affected by the judgment or decree, and it is
well settled that in such cases the party whose interest only is
affected by the alleged error may carry up the case without joining
the others in the appeal or writ of error. [
Footnote 5] Exceptional cases of the kind occasionally
arise, but where the interest is joint and the interest of all is
affected by the judgment, the rule is universal that all must join
in the writ of error, else it is open to the other
Page 87 U. S. 158
party to demand that it be dismissed unless a severance of the
parties in interest has been effected by summons and severance or
by some equivalent action appearing in the record. [
Footnote 6]
Apply that rule to the present case and it is clear that the
writ of error must be dismissed, as one only of the nine defendants
in the original suit is named in the writ of error; nor is there
anything in the record to take the case out of the operation of the
general rule, as the plaintiffs in the court below have recovered
judgment for the several tracts of land described in the
declaration, against all of the defendants therein joined. Separate
judgment for the damages and the whole of the rents and profits is
rendered against the present plaintiff, but the court also rendered
judgment against the other eight defendants for the amount of the
rents and profits, to be credited to the other defendant when
collected, which shows that each defendant is interested in every
part of the judgment.
Viewed in the light of these suggestions, it is quite clear that
the writ of error in this case must be dismissed, as all the
defendants are directly or indirectly affected by the judgment in
respect to the damages and rents, issues and profits, as well as
the judgment that the title to the lands described in the
declaration is in the present defendants. Such a controversy cannot
be properly reexamined here by installments, nor unless all the
parties to be affected by the result are before the court.
Writ dismissed.
[
Footnote 1]
Williams v.
Bank, 11 Wheat. 414.
[
Footnote 2]
Owings v.
Kincannon, 7 Pet. 402.
[
Footnote 3]
Masterson v.
Herndon, 10 Wall. 416;
Hampton v.
Rouse, 13 Wall. 187.
[
Footnote 4]
Todd v.
Daniel, 16 Pet. 523.
[
Footnote 5]
Forgay v.
Conrad, 6 How. 203;
Germain v.
Mason, 12 Wall. 261;
Cox v.
United States, 6 Pet. 182.
[
Footnote 6]
Smyth v.
Strader, 12 How. 327;
Davenport
v. Fletcher, 16 How. 142;
Heirs of
Wilson v. Insurance Company, 12 Pet. 140;
O'Dowd v.
Russell, 14 Wall. 402;
Deneale v.
Stump, 8 Pet. 526.