A writ of error, in which both the plaintiffs in error and the
defendants in error are designated merely by the name of a firm,
containing the expression "& Co.," is not sufficient to give
this Court jurisdiction, but, as the record discloses the names of
the persons composing the firms, the
Page 128 U. S. 226
writ is, under § 1005 of the Revised Statutes, amendable by
this Court, and will not be dismissed.
Where the judgment below is a money judgment against "the
claimants" and their two sureties in a bond, naming them, jointly,
and the sureties do not join in the writ of error, and there is no
proper summons and severance, the defect is a substantial one which
this Court cannot amend, and by reason of which it has no
jurisdiction to try the case, and it will, of its own motion,
dismiss the case without awaiting the action of a party.
The case is stated in the opinion of the Court.
MR. JUSTICE BLATCHFORD delivered the opinion of the Court.
This is a writ of error to the District Court of the United
States for the Northern District of Mississippi, brought to review
a judgment recovered on the 22d of April, 1885, in the name of
Trabue, Davis & Co., as plaintiffs, against Estis, Doan &
Co., as claimants. The citation in the case is addressed to Trabue,
Davis & Co., and states that Estis, Doan & Co. are
plaintiffs in error, and Trabue, Davis & Co. are defendants in
error, and refers to the judgment as one rendered against Estis,
Doan & Co. The supersedeas bond refers to the judgment as one
rendered in favor of Trabue, Davis & Co., plaintiffs, against
Estis, Doan & Co., claimants, and to the writ of error as one
obtained by Estis, Doan & Co., claimants, and it purports to be
executed by J. N. Estis and J. H. Doan, members composing the firm
of Estis, Doan & Co., as principals, and by two sureties, and
Trabue, Davis & Co. are named as the obligees. The original
suit was an attachment suit brought in the name of Trabue, Davis
& Co. against one B. F. McRae in the Circuit Court of
Tishomingo County, Mississippi, on the allegation that McRae had
disposed of his property with intent to defraud his creditors. An
attachment was issued,
Page 128 U. S. 227
and was served by the sheriff upon, among other things, certain
personal property described by him in his return. After such return
a claim by affidavit was made to the personal property so attached
as the property of Estis, Doan & Co., and a forthcoming bond
was given, executed in the name of Estis, Doan & Co., as
principals, and C. F. Robinson and John W. Dillard, as sureties, to
Trabue, Davis & Co., as obligees, conditioned for the payment
by Estis, Doan & Co. to Trabue, Davis & Co. of all such
damages as might be awarded against Estis, Doan & Co. in case
their claim should not be sustained, and for the delivery of the
property to the sheriff if their claim to it should be determined
against them. On the back of the bond was endorsed an affidavit
made by J. H. Doan, setting forth that he and J. N. Estis were the
members who composed the firm of Estis, Doan & Co. This bond
was approved by the sheriff, and the property was returned to
Estis, Doan & Co.
McRae filed a plea in abatement denying the allegation of the
fraudulent assignment of his property, and then the members of the
firm of Trabue, Davis & Co., giving their names as James
Trabue, William A. Davis, and Richard Trabue and stating themselves
to be citizens of Kentucky, and to have been such at the time the
suit was brought, and McRae to have been and to be still a citizen
of Mississippi, caused the suit to be removed into the said
district court of the United States. In that court, a declaration
was filed in the name of the said three members of the firm of
Trabue, Davis & Co. against McRae claiming a recovery on sundry
promissory notes made by McRae. On the 13th of April, 1885, upon a
trial by a jury, a judgment was entered in favor of the plaintiffs
against McRae, with interest at six percent per annum from that
date and costs. On the 22d of April, 1885, after a trial before a
jury of the issue between Trabue, Davis & Co., as plaintiffs in
the attachment, and Estis, Doan & Co., as claimants of the
attached property, a judgment was entered, which is entitled
"Trabue, Davis & Co. v. B. F. McRae, def't, Estis, Doan &
Co., cl'm'ts."
The judgment sets forth that the jury returned as their
verdict
Page 128 U. S. 228
that they found "for the plaintiffs," and made "the following
estimate of the property," specifying it by items, substantially as
in the return of the sheriff to the attachment and in the affidavit
of claim made on behalf of the claimants, but with different
estimates of valuation. The judgment then proceeds:
"It is therefore considered and adjudged by the court that the
plaintiffs recover of the claimants and C. F. Robinson and John W
Dillard, their sureties in their forthcoming bond, the sum of six
thousand and three hundred dollars, together with the costs, both
in the suit of the plaintiffs against the defendant B. F. McRae,
and the costs incident to the trial of this issue, to satisfy the
judgment for said sum of six thousand and three hundred dollars
rendered in favor of the plaintiffs against the defendant B. F.
McRae, in this Court, on the 13th day of April, 1885; but this
judgment to be satisfied upon the delivery to the marshal of the
property described in the claimants' affidavit, or as much thereof
as may be necessary to satisfy said judgment and the costs
aforesaid, and for which let execution issue against the said
_____, and the sureties aforesaid, unless the said property is
delivered to the marshal for the sale thereof by him for the
satisfaction of the judgment and costs aforesaid, which property is
hereby condemned for the payment of said judgment and costs, to be
sold under writ of
venditioni exponas aforesaid."
A bill of exceptions is found in the record raising certain
questions as to the admission of evidence and as to the charge of
the court to the jury, but, in the view we take of the case, these
cannot be considered.
Since the filing of the transcript of the record in this Court,
the death of J. H. Doan has been suggested and an order of this
Court made that the case proceed in the name of J. N. Estis as
surviving partner of the firm of Estis, Doan & Co.
As before stated, the writ of error is taken out in the name of
Estis, Doan & Co., as plaintiffs in error, against Trabue,
Davis & Co., as defendants in error, without naming in the writ
of error the individuals who compose either of the firms.
It is well settled that this Court cannot take jurisdiction of a
writ of error which describes the parties by the name of
Page 128 U. S. 229
a firm, or which designates some of the parties by the
expression "& Co.," or the expression "and others," or in any
other way than by their individual names.
Deneale v.
Archer, 8 Pet. 526;
Heirs of
Wilson v. Insurance Co., 12 Pet. 140;
Davenport v.
Fletcher, 16 How. 142;
Mussina v.
Cavazos, 6 Wall. 355,
73 U. S.
361-362;
Miller v.
McKenzie, 10 Wall. 582;
The
Protector, 11 Wall. 82.
As, however, the record discloses the names of the individuals
who compose both of the firms, the writ of error could be amended
in this Court, under § 1005 of the Revised Statutes, being
§ 3 of the Act of June 1, 1872, c. 255, 17 Stat. 196, which
provides that this Court may at any time, in its discretion and
upon such terms as it may deem just, allow an amendment of a writ
of error
"when the statement of the title of the action or parties
thereto in the writ is defective, if the defect can be remedied by
reference to the accompanying record, . . . provided the defect has
not prejudiced, and the amendment will not injure, the defendant in
error."
In
Moore v. Simonds, 100 U. S. 145, an
appeal was taken in the name of a firm, but it was taken when
§ 1005 was in force, and the bond showed the names of the
individual members who composed the firm. This Court said: "We are
clear, therefore, that the defect is one that may be amended under
the law as it now stands, and for that reason we will not dismiss
the appeal."
But there is another difficulty in the present case which cannot
be reached by an amendment in or by this Court under § 1005.
The judgment is distinctly one against "the claimants, and C. F.
Robinson and John W. Dillard, their sureties in their forthcoming
bond," jointly, for a definite sum of money. There is nothing
distributive in the judgment, so that it can be regarded as
containing a separate judgment against the claimants and another
separate judgment against the sureties, or as containing a judgment
against the sureties payable and enforceable only on a failure to
recover the amount from the claimants, and execution is awarded
against all of the parties jointly. In such a case, the sureties
have the right to a writ of error.
Ex Parte
Sawyer, 21 Wall. 235,
88 U. S.
240.
Page 128 U. S. 230
It is well settled that all the parties against whom a judgment
of this kind is entered must join in a writ of error if any one of
them takes out such writ, or else there must be a proper summons
and severance in order to allow of the prosecution of the writ by
any less than the whole number of the defendants against whom the
judgment is entered.
Williams v. Bank of United
States, 11 Wheat. 414;
Owings v.
Kincannon, 7 Pet. 399;
Heirs of
Wilson v. Life & Fire Ins. Co., 12 Pet. 140;
Todd v.
Daniel, 16 Pet. 521;
Smyth v.
Strader, 12 How. 327;
Davenport
v. Fletcher, 16 How. 142;
Mussina v.
Cavazos, 20 How. 280,
61 U. S. 289;
Clifton v.
Sheldon, 23 How. 481,
64 U. S. 484;
Masterson v.
Herndon, 10 Wall. 416;
Hampton v.
Rouse, 13 Wall. 187;
Simpson v.
Greeley, 20 Wall. 152;
Feibelman v.
Packard, 108 U. S. 14.
Where there is a substantial defect in a writ of error which
this Court cannot amend, it has no jurisdiction to try the case.
Heirs of Wilson v. Life &
Fire Ins. Co., 12 Pet. 140. It will then, of its
own motion, dismiss the case without a waiting the action of a
party.
Hilton v. Dickinson, 108 U.
S. 165,
108 U. S.
168.
For these reasons, the writ of error is dismissed.