Taylor v. Leesnitzer ( 1908 )

Mr. Justice Robb

delivered the opinion of the Court.

This is an appeal from a decree passed upon a bill filed by appellee, Mary J. Leesnitzer, against Margaret E. Taylor [the appellant] .in her own right and as executrix of her deceased husband, Elizabeth E. Padgett, and Franklin C. Padgett, her husband, averring that the testator acquired the real estate described in the bill subsequently to the execution of his will, and that at his death said real estate vested in his heirs, said Mary J. Leesnitzer and said Elizabeth E. Padgett, his half sisters; that appellant had not renounced under the will within the time fixed by law, and that she had thereby become barred of dower right in said real estate; whereupon the bill prayed that said real estate might be sold and the proceeds divided between said heirs.

Appellant interposed a demurrer to said bill, which being overruled and appellant electing to stand thereon, the court decreed said real estate to be sold and the proceeds divided between said heirs, without dower to appellant.

A motion has been made to dismiss the appeal because “Elizabeth E. Padgett, one of the defendants to the original bill, and having a substantial interest adverse to appellant in the maintenance of the decree appealed from in this cause, and who will be affected by its modification or reversal, has not been joined either as an appellee or appellant, or as a party hereto;” and “that there has been no summons and severance, or service of notification of appeal upon said Elizabeth E. Padgett.”

Mrs. Padgett and her sister have a joint interest in the subject-matter of the decree appealed from, but Mrs. Padgett was not made a party to the appeal. These facts bring this case within the rule. Godfrey v. Roessle, 5 App. D. C. 299; Slater v. Hamacher, 15 App. D. C. 294; Masterson v. Herndon (Mastersan v. Howard) 10 Wall. 416, 19 L. ed. 953; Cruit v. Owen, 21 App. D. C. 391.

We are constrained to dismiss the appeal with costs, and it is so ordered. Appeal dismissed.

On April 21, 1908, the appellant filed a motion to vacate the dismissal of her appeal, or for a modification of the decree of dismissal.

The motion was denied June 9, 1908, Mr. Chief Justice Shepard delivering the opinion of the Court:

The appellant has filed a motion to set aside the decree dismissing her appeal, and for a hearing on the merits, or else modifying the same so that she be permitted to correct her record by citing the omitted parties, or giving an additional bond.

This is not a case of a judgment or decree against two or more defendants whose interests are inseparably involved, in which case to authorize an appeal by one alone there must be a summons and severance. The interests of complainant and the defendant Padgett were the same, and the latter was made a party defendant for the purpose of obtaining partition of the lands claimed by her and complainant as tenants in common. Her interests were antagonistic to those of the chief defendant, and identical with those of the complainant. She was a necessary party to the suit, and, so far as defendant Taylor was concerned in the subject-matter of the controversy, occupied the attitude of the complainant. In equity, parties one in interest may be arrayed as plaintiffs and defendants, nominally; but their true relations are taken into consideration throughout the entire proceeding. Having admitted the allegations of the bill and thereby arrayed herself in interest with the plaintiff and against- the other defendant, the decree gave her all that she could expect. She had nothing that she could appeal from, and it was not necessary that defendant Taylor should obtain a severance from her in order to prosecute an appeal. That appeal, to be effective, must be against her as well as against the complainant. The decree running in favor of both, and being inseparable, it is not perceived how it could be reversed as to the one and not as to the other, or how the question involved could be adjudicated in the case of one without seriously affecting the interests of the other. The reason, therefore, for requiring both to be made parties to one appeal, is even stronger than that which requires two defendants affected alike by a decree to join in an appeal, or else sever in case one be content to abide by the result. If the notice of appeal given in open court was intended to include Mrs. Padgett also, it was as effectual against her as against the complainant. But if intended to be included, the required supersedeas bond was as important to her as to complainant, and intended equally for the protection of her interests. This bond is not copied in the transcript, as the rules do not permit it under ordinary _ conditions. The simple recital is: “June 2, 1901 — Appeal bond filed.” An inspection of the original bond in the office of the clerk of the court below shows that it was conditioned solely for the benefit of the complainant, Leesnitzer; the defendant Padgett is not mentioned in it.

It is contended that this court has no right to look beyond the transcript as filed, and that the presumption must be indulged that the bond is complete in all respects. Martin v. Hunter, 1 Wheat. 304, 361, 4 L. ed. 97, 111, is cited in support of this contention. Without pausing to consider the difference between the statute regulating writs of error from the Supreme Court of the United States, which was under consideration in that case, and the rule providing for appeals to this court, the proposition may be conceded as sound under ordinary conditions. But, under the conditions of this case, the presumption as regards the recitals of the bond operates rather against, than in favor of, the appellant. When the transcript in this case was filed, July 17, 1907, it was entitled, Margaret E. Taylor, etc. v. Mary J. Leesnitzer, and was so entered upon the docket. The usual appearence signed by counsel for appellee was executed under that title. The record was printed as filed, and in September a copy was delivered to counsel for Mrs. Leesnitzer, who also entered his appearance for her. A few days before the case was called for hearing, counsel for the appellant informed the clerk that the case had not been properly docketed, as Mrs. Leesnitzer was not the only appellee, and requested that the docket and cover of the records be corrected, making the title appear as follows: “Margaret E. Taylor, etc. v. Mary J. Leesnitzer, Elizabeth E. Padgett, and Franklin C. Padgett.” This was done and the cover of the printed record was changed and reprinted as requested. No application was made to the court for leave to do this. The caption of the transcript as it came from the court below remains unaltered. Another ' copy with the amended title on the cover was then delivered to counsel for Leesnitzer. The motion to dismiss was made within twenty days thereafter. The title given by the clerk below to the transcript was the correct one if the bond ran only in favor of Mrs. Leesnitzer, and the presumption is that he followed the obligation of the bond. The ex parte amendment of the docket entry and the title on the cover of the printed record cannot have the effect to raise the counter presumption contended for. The appeal was therefore correctly dismissed.

The suggestion made on the argument of the case, that, in the event the motion be held to be well taken, the appellant may be allowed to file an additional supersedeas bond and have a citation to Mrs. Padgett and her husband, has been renewed in the present motion.

While we regret to have to dispose of an appeal save upon its merits, we do not perceive how this motion can be granted. Under the provisions of the Revised Statutes (secs. 1000, 1005, 1007, and perhaps others), the Supreme Court of the United States, has been quite liberal in indulging presumptions in favor of regularity, and in permitting amendments to writs of error and citations therein. See Martin v. Hunter, supra; Peugh v. Davis, 110 U. S. 227, 28 L. ed. 127; Inland & Seaboard Coasting Co. v. Tolson, 136 U. S. 572, 34 L. ed. 539, 10 Sup. Ct. Rep. 1063; and other cases referred to therein. In Scruggs v. Memphis & C. R. Co. 131 U. S. cciv., Appx., and 26 L. ed. 741, an appeal bond for costs, though not signed by all of the appellants, was held to be sufficient surety. In Shepherd v. Pepper, 133 U. S. 627, 644, 33 L. ed. 706, 713, 10 Sup. Ct. Rep. 438, five defendants gave notice of appeal in open court. A supersedeas bond was required of one of them, Cray, in the sum of $100, which she had neglected to execute. She was in the appellate court on the record, no citation being necessary because of the notice and allowance of appeal having been made in open court, and the court permitted her to execute the bond nunc pro tunc. This had no effect to bring in a new party, but amended a defective appeal and perfected it. On the other hand, the same court has, of its own motion, dismissed appeals where a necessary party has not been brought up by the writ of error or the appeal. Estis v. Trabue, 128 U. S. 225, 229, 32 L. ed. 437, 438, 9 Sup. Ct. Rep. 58. It was held in that case that a writ of error might be amended under see. 1005 Rev. Stat. so as to insert the names of the individual members of a partnership, in the place of the partnership, said names appearing elsewhere in the record. There-was, however, another and fatal objection, as stated by Mr.. Justice Blatchford in the following words: “But there is another difficulty in the present case, which cannot be reached. by an amendment in or by this court under sec. 1005. The judgment is distinctly one against ‘the claimants and C. B. 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 the parties-jointly. In such a case the sureties have the right to a writ, of error. Ex parte Sawyer, 21 Wall. 235, 240, 22 L. ed. 617, 619. 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. *“ * * Where there is a substantial defect in a writ of error which this court cannot amend, it has no jurisdiction to try the case.” In Mason v. United States, 136 U. S. 581, 34 L. ed. 545, 10 Sup. Ct. Rep. 1062, certain sureties sued out a. writ of error without joining the principal, and other sureties against whom judgment had gone by default. The court refused leave to amend the writ of error by adding the names of" the omitted parties, or for a severance from them, and dismissed the writ of error. No motion to dismiss had been made,, and the court discovered the defect on the argument.

As before said, the reasons for requiring all of the opposing-parties in interest to be joined on the writ of error or appeal' are stronger than those which apply to the joinder of all those-who have an interest identical with the plaintiff in error or appellant. In the latter case one who has acquiesced in the judgment below is, by the summons and severance, barred of a writ of error thereafter. Where the opposing interests are joint or inseparable, there is no question of severance; all whose interests are affected in common must be included in the writ of error or appeal. No writ of error issues from this court save to the police court in certain cases; all cases are brought up by appeal. Rule 10 of this court provides that no judgment or decree shall be reviewed unless appeal shall be taken within twenty days, Sundays excluded, after the same shall have been made or pronounced. And the appellant, to supersede the'execution of the judgment or decree appealed from, shall, within such time of twenty days, file a bond conditioned for the successful prosecution of the appeal. The penalty of the bond in this case was fixed at $1,000. With the passage of the time given by the rule, the right of appeal expires. United States ex rel. Mulvihill v. Clabaugh, 21 App. D. C. 440, 443.

In Slater v. Hamacher, 15 App. D. C. 294, this court went very far in permitting an amendment citing in certain omitted parties, who should have been joined with the appellant, or else omitted by proper summons and severance. The decree had gone against these other defendants whose interests had been derived from the chief defendant, who alone appealed. They had acquiesced in the decree and were completely bound thereby, and the amendment cured what was considered, as shown by the authorities cited, a formal defect in the proceeding on appeal. Under the rules of the court, those parties could not have taken an appeal from the decree after the time therefor had expired, and the notice given to them was a formality. In the present case, on th'e other hand, the omitted party was opposed in interest to the appellant, and was the beneficiary, jointly with the appellee, of the decree sought to be reviewed. The decree being in her favor, she was interested in its maintenance and opposed to its review. To a proceeding to review it, she was a necessary party. As such she had the right to demand that, as to her also, the requirement of the rule should be obeyed. To permit her now to be brought in and made a party to the appeal would be to set aside the rule which is the law of the court as well as of the parties. “Under former decisions this court has no power to set aside its rules relating to appeals, and to permit a bond to be filed in this court in lieu of one that should have been filed in the court below as prescribed in those rules. United States ex rel. Mulvihill v. Clabaugh, 21 App. D. C. 440, and cases cited.” Darlington v. Turner, 24 App. D. C. 573, 592. The situation, as said in Estis v. Trdbue, supra, is one that cannot be reached by amendment. It follows that the motion and leave to amend must be denied. Denied.

An appeal by the appellant to the Supreme Court of the United States was allowed June 6, 1908.