George Day, Bowen Matlock, Isaac Frothingham, and George Warner, Appellants v. William Washburn and John Keith

• Decision Date: 01 December 1859
• Citation: 16 L.Ed. 551,64 U.S. 309,23 How. 309
• Parties: GEORGE W. DAY, BOWEN MATLOCK, ISAAC H. FROTHINGHAM, AND GEORGE W. WARNER, APPELLANTS, v. WILLIAM A. WASHBURN AND JOHN A. KEITH
• Court: U.S. Supreme Court

64 U.S. 309

23 How. 309

16 L.Ed. 551

GEORGE W. DAY, BOWEN MATLOCK, ISAAC H. FROTHINGHAM, AND GEORGE W. WARNER, APPELLANTS, v. WILLIAM A. WASHBURN AND JOHN A. KEITH.

December Term, 1859

THIS was an appeal from the Circuit Court of the United States for the district of Indiana.

A motion was made by Albert G. Porter, as amicus curiae, to dismiss the appeal, because the appeal was taken by part only of the complainants below, and that the other complainants have not been made and are not parties to said appeal.

The authorities cited were the following:- A writ of error was brought by Mary Deneale and others, as plaintiffs. The court say, 'who the others are cannot be known to the court, for their names are not given in the writ of error, as they ought to be. Mary Deneale alone cannot maintain a writ of error on this judgment, but all the parties must be joined, and their names set forth, in order that the court may proceed to give a proper judgment in the case.'

Writ of error dismissed for irregularity.

Deneale v. Archer, 8 Peters, 526.

Smyth v. Strader, 12 How., 327.

The writ of error did not contain the names of the parties to the judgment set out in the record.

Cause dismissed.

'If a writ of error be brought in the names of several parties, and any one or more of them refuse to appear and assign errors, they must be summoned and severed, after which the writ of error may be proceeded in by the rest alone.'

2 Tidd., 1135.

Mr. Justice WAYNE delivered the opinion of the court.

Albert G. Porter, Esquire, a counsellor of this court, and who was concerned as counsel in the court below for certain petitioners, claiming an interest in the matter in controversy adversely to the appellants, asked to be permitted, as amicus curiae, to move for the dismissal of this appeal, alleging for cause that it had been irregularly brought to this court, in this particular, that the appeal had been taken only by a part of the complainants, and that such of them as had been omitted were not parties to the appeal.

The record discloses the following facts:

The appellants filed in the Circuit Court a bill to set aside, as fraudulent, a conveyance of property, and to subject it to the payment of their claims against William A. Washburn, and associated with him as a defendant John A. Keith, the grantee of the conveyance. The bill was separately answered by Washburn and Keith, and proceedings were had in the case, until at December term, in 1858, the issue was made up, upon bill, answer, replication, and exhibits. At that term of the court, December 21, 1858, a number of persons, claiming also to be creditors of Washburn, filed a petition by their counsel, Hall, McDonald, and Porter, praying to be made parties to the bill, as complainants, and to be permitted to share in such distribution as might be made out of the property charged to have been fraudulently conveyed by Washburn to Keith, in the event of the courts decreeing that it had been so done, and that it was liable for the payment of Washburn's creditors. The court directed these petitioners to be made parties to the bill of the appellants, as complainants, and under that order the decree now appealed from was made.

But before the decree was rendered, the cause was referred to a master, to report the sums due to...