1. Where a writ of error is defective in the statement of the
parties thereto, the right to amend is not absolute under sec.
1005, Rev. Stat., but the court, in its discretion, may allow the
requisite amendment to be made upon such terms as it may deem
2. As both parties severally claim compensation for land taken
by the City of Philadelphia for public use, the city, the only
adverse party to them in the proceedings below, is an indispensable
party to the writ.
3. The Court declines to allow an amendment making the city such
party, inasmuch as the questions made by the assignment of error
have been settled by repeated decisions and are no longer open to
4. The Seventh Amendment to the Constitution, touching the right
of trial by jury, applies only to the courts of the United
5. The act of the General Assembly of the State of Pennsylvania
entitled "An Act relating to roads, highways, and bridges,"
approved July 13, 1836, makes ample provision for judicial inquiry
in the matters therein mentioned, and is due process of law, within
the meaning of the federal Constitution.
The facts are stated in the opinion of the Court.
MR. CHIEF JUSTICE WAITE delivered the opinion of the Court.
It having been suggested to us at the last term that the City of
Philadelphia was a party to this cause in the court below, and
adverse in interest to the plaintiffs in error, leave was granted
the defendants in error to move to dismiss this suit, because the
city is not named in the writ, and for the city to appear by
counsel to be heard in support of the motion. That
Page 95 U. S. 295
motion has now been made, and the plaintiffs in error, while
resisting it, ask leave, under sec. 1005 Rev.Stat., to amend their
writ by naming the city as a defendant in case it shall appear to
The city councils, by ordinance, ordered that Paschall Street
should be opened to public use. Thereupon the present defendants in
error, owning property which would be taken by the opening,
petitioned the court of quarter sessions, conformably to the act of
the General Assembly of Pennsylvania regulating such proceedings,
to appoint proper persons to view the premises and assess their
damages. In accordance with this petition, the court appointed a
jury of six men to view the premises and assess the damages which
had been sustained. Notice of their appointment and of the time and
place they would meet to perform their duties was served upon all
the owners of property through which the street would run. Availing
themselves of this notice, the plaintiffs in error appeared among
others and presented their claims.
Notice of the meeting was also served, in accordance with the
further provisions of the statute, upon the law department of the
city, and the solicitor, who was charged by law with the duty of
representing and protecting the interests of the city in all such
matters, appeared before the jury in his official capacity. The
viewers, after a hearing, made a report to the court of their
allowances to the several claimants. The plaintiffs in error
excepted to the report for the reason, among others, that the
amount awarded to them was too small, and the city also excepted
because it was too large. The court of quarter sessions overruled
the exceptions of both parties and confirmed the report. The
plaintiffs in error then appealed to the supreme court, and the
report being there again confirmed, they now seek to bring the case
here for review upon this writ.
There can be no doubt but that the city is an indispensable
party to this suit. The viewers were appointed at the instance of
the defendants in error, but they were appointed in a proceeding by
the city, in its nature adverse to all the property owners
affected, for an appropriation of private property to public use.
It nowhere appears that the interests of the plaintiffs in error
are adverse to those of the defendants in
Page 95 U. S. 296
error. They were both property owners, and both seeking
compensation for their property before it should be opened to the
use of the public. The city alone represented the public and was
therefore the only party to the proceeding adverse to the
claimants. Under such circumstances, we cannot properly review the
judgment below in its absence.
The question now arises whether the plaintiffs in error shall
have leave to amend. Sec. 1005 of the Revised Statutes authorizes
this Court, in its discretion and upon terms as it may deem just,
to allow an amendment of a writ of error when the statement of the
parties thereto is defective. The right of a party to amend is not
absolute, but it is to be granted by the Court in its discretion.
Whether it should be granted in a particular case must depend upon
the attending circumstances.
In this case, we think the amendment ought not to be allowed. We
have looked carefully through the record, and cannot find that any
question is presented which has not been many times decided. We
have held over and over again that Art. 7 of the amendments to the
Constitution of the United States relating to trials by jury
applies only to the courts of the United States, Edwards v.
21 Wall. 557, and in the act of the
General Assembly of Pennsylvania now under consideration ample
provision is made for an inquiry as to damages before a competent
court and for a review of the proceedings of the court of original
jurisdiction upon appeal to the highest court of the state. This is
due process of law within the meaning of that term as used in the
federal Constitution. To grant the amendment would, in our opinion,
lead only to unnecessary delay and expense.