Doty v. Strong , 1 Bur. 3 ( 1842 )

Chief Justice Dunn

delivered the opinion of the court upon the motion.

The court could not, unless for extraordinary reasons, entertain this motion. The reason for entertaining the motion urged by counsel for the plaintiff, is, “ that a decision of the Supreme Court of the United States, in Cox and Dicks vs. the United States, reverses the principles decided by this court on the motion to dismiss herein.” From a minute and careful inspection of that decision, this court is unanimously in the opinion, that it is a case by no means in point, The motion was decided on different grounds entirely; and the reasons which influenced the court in that case, as far as they can be inferred from the arguments of counsel, (for they are not assigned in the decision,) are such as conduce to satisfy this court still moro clearly, if any thing were wanting, that their opinion on the motion in the case at bar, was correct.

We understand these to have been the reasons why the motion to dismiss was overruled. All the parties were before the court. They had separate grounds of defence, and the court below allowed them to sever in their answers. Judgment was awarded against all in in sólido, and separately for the whole amount against two of the defendants. They had both sued out a writ of error, and the motion should have been to consolidate. The parties had distinct grounds of error, and claimed distinct remedies. It was insisted in argument, that the case of Williams vs. Bank, in 11 Cranch, was not applicable, because Williams alone took up the cause; but in that case the court was understood to recognize the principle in practice of summons and severance,

If the Supreme Court of the United States had decided that the practice of summons and severance was obsolete in reference to error in that court, (which, however, they did not,) still, if this court had entertained the practice, it never having been reversed by any judicial decision upon principle, it certainly would not have been treated as error by the Supreme Court.

Motion overruled.