Lewis v. Sittel

• Decision Date: 07 November 1908
• Docket Number: 2,724.
• Citation: 165 F. 157
• Parties: LEWIS et al. v. SITTEL. [1]
• Court: U.S. Court of Appeals — Eighth Circuit

165 F. 157

LEWIS et al. v. SITTEL. ^[1]

No. 2,724.

United States Court of Appeals, Eighth Circuit.

November 7, 1908

Syllabus by the Court

Six months was the time within which a writ of error or an appeal could be taken subsequent to March 3, 1905, to review a judgment of the United States Court in the Court of Appeals of the Indian Territory.

All the parties to a suit or proceeding who appear from the record to have an interest in the order, judgment, or decree challenged must be made parties thereto or given notice equivalent to summons and severance before a national appellate court will proceed to a decision of the case upon the merits. A joint judgment debtor is such a party, and the writ will be dismissed in his absence.

In the absence of proof of reasonable diligence to obtain the consent of a joint judgment debtor to a writ of error until more than three months after the expiration of the time to sue out the writ, held:

(a) The prosecution and amendment of a writ of error from the Court of Appeals of the Indian Territory to the United States court was governed by the rules and practice of the Circuit Court of Appeals of the Eighth Circuit, under Act March 3, 1895, c. 1479, Sec. 12, 33 Stat. 1081 (U.S. Comp St. Supp. 1907, p. 208), subsequent to March 3, 1895, and not by chapter 40, Mansf. Dig. Ark. (chapter 17, Ind. T Ann. St. 1899).

(b) That court was not guilty of any abuse of discretion or of committing any error of law under either the practice prescribed by the Arkansas statutes or under the rules and practice of the United States Circuit Court of Appeals by reason of its denial of the application to join the omitted debtor or of its dismissal of the writ.

R. A. Smith, for plaintiffs in error.

Samuel A. Wilkinson, for defendant in error.

Before SANBORN and HOOK, Circuit Judges, and PHILIPS, District Judge.

SANBORN Circuit Judge.

On July 13, 1905, in an action pending in the United States court for the central district of the Indian Territory, a judgment was rendered that the plaintiff, Edward D. Sittel, recover of the defendants, Allen Wright, O. W. Argo, and Yancey Lewis, the possession of a certain lot of land, $425 damages, and the costs of his suit. On July 22, 1905, upon the petition of Wright and Lewis, to which Argo was not a party, a writ of error was allowed by the United States Court of Appeals in the Indian Territory to review that judgment. On May 12, 1906, Sittel moved the Court of Appeals of the Indian Territory to dismiss the writ because Argo had not been made a party to it. Wright and Lewis answered that the reason why Argo had been omitted was that he was not a resident of the Indian Territory when the writ was sued out and his residence was unknown, but that it had lately been discovered, and they and Argo prayed that he might be joined a party plaintiff in the proceeding, but the court declined to grant the application and dismissed the writ, and this ruling is assigned as error.

In the appellate courts of the United States the rule is that all the parties to a suit or proceeding, who appear from the record to have an interest in the order, judgment, or decree challenged by the appeal or writ of error, must be made parties to the proceeding or must be given a notice equivalent to summons and severance before the court will proceed to a decision of the merits of the case, and this to the end that the successful party may be at liberty to enforce his judgment, decree, or order without delay against those parties who do not desire to have it reversed, and that the appellate court may not be required to decide the same question more than once upon the same record. Masterson v. Herndon, 10 Wall. 416, 19 L.Ed. 953; Hardee v. Wilson, 146 U.S. 179, 181, 13 Sup.Ct. 39, 36 L.Ed. 933; Davis v. Mercantile Trust Co., 152 U.S. 590, 14 Sup.Ct. 693, 38 L.Ed. 563; Gray v. Havemeyer, 3 C.C.A. 497, 505, 53 F. 174, 182; Farmers' Loan & Trust Co. v. McClure, 78 F. 211, 213, 24 C.C.A. 66, 68; Dodson v. Fletcher, 78 F. 214, 215, 24 C.C.A. 69, 70.

The Court of Appeals in the Indian Territory held that the time for suing out its writ of error was limited to six months after the judgment was rendered in the trial court by the Act of March 3, 1905, c. 1479, Sec. 12, 33 Stat. 1081 (U.S. comp. St. Supp. 1907, p. 208), but counsel for the plaintiffs in error argue that this was an error, and that their application to make Argo a party should have been granted and their writ should have been sustained because the time for procuring and the manner of prosecuting writs of error from that court were those prescribed by Mansfield's Digest for such writs from the Supreme Court of Arkansas, and not those which conditioned writs from the United States Circuit Court of Appeals of the Eighth Circuit to the United States Circuit Courts. The time for suing out a writ of error from the Supreme Court of Arkansas to its subordinate courts was three years, and in case the party procuring such a writ satisfied the court, by due proof on affidavit, that the consent of a party who ought to have been joined could not have been procured by reason of his absence from the state, that court was authorized to allow the prosecution of the writ without his joinder. Mans. Dig. Ark. c. 40, Secs. 1276-1281 (Ind. T. Ann. St. 1899, c. 17, Secs. 778-783). The contention is that these provisions of the statutes of Arkansas fixed the time and manner of prosecuting the writ from the Court of Appeals of the Indian Territory in this case because Congress by the act of March 1, 1895, chapter 145, Sec. 11, 28 Stat. 698, enacted that that court should have such jurisdiction, powers, and superintending control over the courts in the Indian Territory as the Supreme Court of Arkansas had over the courts of that state, and that the provisions of chapter 40 of Mansfield's Digest relating to the jurisdiction and powers of the Supreme Court of that state, to appeals and writs of error, and to the trial and decision of causes were extended over the Indian Territory so far as they were applicable. If the congressional legislation had stopped here, the position of counsel might have been tenable. But before the writ of error from the Court of Appeals in the Indian Territory was allowed in this case, the act of March 3, 1905, c. 1479, Sec. 12, 33 Stat. 1081 (U.S. Comp. St. Supp. 1907, p. 208), had provided:

'That hereafter all appeals and writs of error shall be taken from the United States courts in the Indian Territory to the United States Court of Appeals in the Indian Territory, and from the United States Court of Appeals in the Indian Territory to the United States Circuit Court of Appeals for the Eighth Circuit in the same manner as is now provided for in cases taken by appeal or writ of error from the Circuit Courts of the United States to the Circuit Court of Appeals of the United States for the Eighth Circuit.'

Counsel invoke the conceded rule that repeals by implication are not favored, and that, where sections of earlier and later acts can by any reasonable construction stand together, they must so stand (Gowen v. Harley, 56 F. 973, 6 C.C.A. 190) and persuasively argue that the manner of securing the writ does not include the time for securing it, and that both the time and the manner of the prosecution of writs from the Court of Appeals of the Indian Territory remained the same after as before the passage of the act of 1905. But the purpose of all construction of statutes is to ascertain and carry into effect the real intention expressed by the legislative body which originated them, and when this clearly appears from the terms of the statute technical rules and definitions may not prevail over it. The word 'hereafter' in section 12 of the act of 1905 strongly indicates the...