Loveless v. Ransom

• Decision Date: 19 January 1901
• Docket Number: 639.
• Citation: 107 F. 626
• Parties: LOVELESS v. RANSOM et al.
• Court: U.S. Court of Appeals — Seventh Circuit

107 F. 626

LOVELESS v. RANSOM et al.

No. 639.

United States Court of Appeals, Seventh Circuit.

January 19, 1901

This is an action of debt on a bond conditioned for the performance of the covenants of a lease, which bond was executed by Carlton H. Gary and Braman H. Loveless as principals, and Noah E. Gary and Braman Loveless as sureties. Noah E. Gary having departed this life, the suit upon the bond is against the two principals, the surety, Braman Loveless, and Caroline H. Gary, Ella Ethel C. Gary, Anna Louise Gary, Dora Bernice Gary, and Ava Grace Gary, respectively the widow and heirs at law of Noah E. Gary. The two defendants Loveless pleaded to the declaration. The other defendants defaulted. The trial resulted in a judgment March 4, 1899, against all the defendants to the action. The judgment concludes with this clause: 'Bond on writ of error is fixed at the sum of $4,500. Bill of exceptions to be filed in sixty days. ' The bill of exceptions, signed May 15, 1899, concludes as follows: 'To which decision of the court (referring to the judgment) defendants then and there excepted, and said Braman Loveless prayed an appeal, and prays that this, his bill of exceptions, may be signed and made a part of the record in this cause, which is done accordingly. ' Prior thereto, and on March 16, 1899, Braman Loveless filed in the clerk's office a bond, with sureties, reciting, among other things, that, he 'being about to obtain a writ of error,' the bond was conditioned 'that if the said Braman Loveless shall prosecute his appeal to effect, and answer all damages and costs if he fails to make his plea good, the above obligation to be void; else to remain in full force and virtue. ' The record does not show this bond to have been approved by the court, except as it was approved by a subsequent order of September 2, 1899, allowing a writ of error. At a subsequent term of the court, on September 2 1899, Braman Loveless filed his petition for a writ of error with an assignment of errors, and the court on that day allowed the writ; the order reciting, 'Said defendant having given bond according to law in the sum of forty-five hundred dollars which said bond is to operate as a supersedeas. ' A citation was thereupon on that day issued, returnable within 30 days from its date, and was served September 30th following. The record was filed in this court October 25, 1899. On January 16, 1900, the defendants in error filed their brief upon the merits of the appeal, and on January 19, 1900, filed their motion to dismiss the writ of error upon the ground that no summons and severance had been had, and that this court had not jurisdiction of a writ of error sued out by one of the defendants to the judgment.

Charles Larimore and J. W. Cochran, for plaintiff in error.

Lockwood Honore, for defendants in error.

Before WOODS and JENKINS, Circuit Judges, and BUNN, District Judge.

JENKINS Circuit Judge, after the foregoing statement of the case, .

The rule is firmly established that, where a judgment or decree is joint, all the parties against whom it is rendered must join in the writ of error or appeal, unless there be summons and severance, or the equivalent. Williams v. Bank, 11 Wheat, 414, 6 L.Ed. 508; Owings v. Kincannon, 7 Pet. 399, 8 L.Ed. 727; Wilson v. Insurance Co., 12 Pet. 140, 9 L.Ed. 1032; Smyth v. Strader, 12 How. 327, 13 L.Ed. 1008; Masterson v. Herndon, 10 Wall. 416, 19 L.Ed. 953; The Protector, 11 Wall. 82, 20 L.Ed. 47; Hampton v. Rouse, 13 Wall. 187, 20 L.Ed. 593; Simpson v. Greeley, 20 Wall. 152, 22 L.Ed. 338; Feibelman v. Packard, 108 U.S. 14, 1 Sup.Ct. 138, 27 L.Ed. 634; Estis v. Trabue, 128 U.S. 225, 9 Sup.Ct. 58, 32 L.Ed. 437; Downing v. McCartney, 131 U.S. xcviii., 19 L.Ed. 757; Mason v. U.S., 136 U.S. 581, 10 Sup.Ct. 1062, 34 L.Ed. 345; Dolan v. Jennings, 139 U.S. 385, 11 Sup.Ct. 584, 35 L.Ed. 217; Hardee v. Wilson, 146 U.S. 179, 13 Sup.Ct. 39, 36 L.Ed. 933; Ingelhart v. Stansbury, 151 U.S. 68, 14 Sup.Ct. 237, 38 L.Ed. 76; Davis v. Trust Co., 152 U.S. 590, 14 Sup.Ct. 693, 38 L.Ed. 563; Sipperly v. Smith, 155 U.S. 86, 15 Sup.Ct. 15, 39 L.Ed. 79; Railway Co. v. Evans, 175 U.S. 723, 20 Sup.Ct. 1023, 44 L.Ed. 337; Fordyce v. Trigg, 175 U.S. 723, 20 Sup.Ct. 1024, 44 L.Ed. 337.

The supreme court has declared that the matter is jurisdictional and may be raised at any time before final disposition of the appeal; and we have, in conformity...