Francis Smith, Appellant v. Joseph Clark, Et Al

• Citation: 53 U.S. 21,13 L.Ed. 875,12 How. 21
• Parties: FRANCIS O. J. SMITH, APPELLANT, v. JOSEPH W. CLARK, ET AL
• Decision Date: 01 December 1851
• Court: United States Supreme Court

53 U.S. 21

12 How. 21

13 L.Ed. 875

FRANCIS O. J. SMITH, APPELLANT, v. JOSEPH W. CLARK, ET AL.

December Term, 1851

A MOTION was made by Mr. Woodbury to docket and dismiss this case under the 43d rule of this court. The case purported to be an appeal from the Circuit Court of the United States for the District of Massachusetts. The certificate of the clerk of the Circuit Court is set forth in the order passed by this court, and to be found at the end of this report. It is, therefore, unnecessary to repeat it.

Mr. Chief Justice TANEY delivered the opinion of the court.

A motion has been made to docket and dismiss this case, under the 43d rule of this court.

The certificate of the clerk states, that, in the Circuit Court of Massachusetts, in a cause depending in that court, in which Francis O. J. Smith was complainant in equity, and Joseph W. Clark and others were respondents, a final decree in that court was made on the 17th of October, 1850, in favor of the said Joseph W. Clark and others, respondents, from which the said Francis O. J. Smith appealed on the same day; and on the 30th of October filed his appeal-bond with sureties, whereby execution on the decree was suspended.

The certificate conforms to the rule in all respects but one, and that is in the statement of the parties. The respondents are stated to be Joseph W. Clark and others, from which, as well as from the statement in the motion, it appears that there were other respondents parties to the suit, who are not named in the certificate.

The 43d rule provides, that where the party against whom a judgment or decree is rendered, fails to file the record and docket the case within the time limited by the rule, the other party may

docket the case and file a copy of the record with the clerk, in which case it shall stand for argument at the term; or he may, at his election, have the case docketed and dismissed upon producing a certificate from the clerk stating the cause, and certifying that such a writ of error or appeal had been duly sued out and allowed.

Now, where the unsuccessful party brings a writ of error, all the parties to it must be named in the writ; and the name of one or more of them 'and others' is not a sufficient description to bring those not named before the court. It was so decided in Deneale & others v. Stump's Executors, 8 Pet., 526. And the same principle was applied to a writ of error docketed under the 43d rule, in the case of Holyday et al. v. Batson et al., 4 How., 645. And the reason for requiring all the parties, whose interests are to be affected by the judgment, to be named in the writ of error, applies with equal force to the case of an appeal from a...