Holbrook, Cabot & Daly Contracting Co. v. Menard
| Citation | 145 F. 498 |
| Decision Date | 17 April 1906 |
| Docket Number | 580. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
| Parties | HOLBROOK, CABOT & DALY CONTRACTING CO. v. MENARD. |
Benjamin Patterson, for plaintiff in error.
J. M Gardner, for defendant in error.
Before WALLACE, LACOMBE, and TOWNSEND, Circuit Judges.
Upon the cause being reached for argument, the defendant in error moved to dismiss the writ of error, upon the ground that, the judgment appealed from being a joint one and the codefendant not joined in the writ, this court is without jurisdiction to hear the appeal. The motion is made upon the record, and the record only can be considered. Inglehart v Stansbury, 151 U.S. 72, 14 Sup.Ct. 237, 38 L.Ed. 76. It discloses the following facts: Plaintiff averred that she was injured by reason of a collision between one of the cars of the Interurban Street Railway Company and one of the trucks of the Holbrook, Cabot & Daly Contracting Company. She made both companies defendant, averred that her injuries were inflicted by reason of the 'carelessness and negligence of the defendants, their servants, agents, or employes,' and demanded judgment 'against the defendants.' The cause came on to trial at a jury session of the Circuit Court in April, 1905, the defendant Holbrook, Cabot & Daly Contracting Company appearing by its attorney, and the defendant Interurban Street Railway Company appearing by its attorney, and the plaintiff appearing by her attorney. The jury rendered a verdict against both defendants, and on April 19th judgment was entered in favor of plaintiff against both. The defendant Holbrook, Cabot & Daly Contracting Company secured the allowance of a writ of error (which in no way indicates upon its face the existence of a codefendant) on May 29, 1905, and its bill of exceptions was settled on September 11th.
It is a familiar doctrine that in cases at law where the judgment is joint all the parties against whom it is rendered must join in the writ of error. The reasons for this practice are that the successful party may be at liberty to proceed in the enforcement of his judgment against the parties who do not desire to have it reviewed, and that the appellate tribunal shall not be required to decide a second or third time the same question on the same record. Where one of the parties refuses to join in a writ of error the other may have a remedy by summons and severance. Courts have grown more liberal, and the formal...
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American Baptist Home Mission Soc. v. Barnett
...where each of two defendants took separate appeals, this court, instead of consolidating them, dismissed both. Holbrook, etc., Contracting Co. v. Menard (C. C. A.) 145 F. 498; Interurban St. Ry. Co. v. Menard (C. C. A.) 145 F. The technical mode of proceeding to obtain severance is not impo......
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Babcock v. Norton
...68; Lewis v. Sittel, 165 F. 157, 91 C. C. A. 191; Detroit v. Guaranty Trust Co., 168 F. 608, 93 C. C. A. 604; Holbrook, etc., Contracting Co. v. Menard, 145 F. 498, 76 C. C. A. 258; Love v. Export Storage Co., 143 F. 1, 74 C. C. A. In Whitehouse's Equity Practice, vol. 1, p. 852, § 512, it ......
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Griffin v. Southern Pac. Co.
......127, 15 S.Ct. 786,. 39 L.Ed. 919; Holbrook, etc., Con. Co. v. Menard [C. A.], 145 F. 498. See also ......
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Preston v. Fidelity & Deposit Co. of Maryland
...Humes v. Third National Bank, 5 Cir., 54 F. 917; H. E. Wolfe Construction Co. v. Fersner, 4 Cir., 58 F.2d 27; Holbrook, Cabot & Daly Contracting Co. v. Menard, 2 Cir., 145 F. 498. Cf. City of Detroit v. Guaranty Trust Co. of N. Y., 6 Cir., 168 F. 608; Oakland County, Mich., v. Hazlett, 6 Ci......