Masterson v. Herndon

• Citation: 10 Wall. 416,77 U.S. 416,19 L.Ed. 953
• Parties: MASTERSON v. HERNDON
• Decision Date: 01 December 1870
• Court: United States Supreme Court

77 U.S. 416

19 L.Ed. 953

10 Wall. 416

MASTERSON v. HERNDON.

December Term, 1870

APPEAL from the Circuit Court for the Western District of Texas; the case being thus:

Howard and others filed in the court below a bill of peace and for conveyance of pretended title to a tract of land described, against S. A. Maverick and J. H. Herndon, and on that bill the court decreed that the complainant 'have and recover of the said S. A. Maverick and the said J. H. Herndon the tract of land in the bill described, and that their title to the same is hereby decreed to be free from all clouds cast thereon by the said defendants.'

From this decree Herndon appealed. In regard to Maverick, the petition, which was signed by counsel only, and was not sworn to, was thus:

'Your petitioner says that his co-defendant, Maverick, refuses to prosecute this appeal with him.'

Mr. P. Phillips, for the appellees, now objected that there was no valid appeal in the case, because the decree being a joint decree against Herndon and Maverick, Herndon alone had asked for an appeal.

Mr. W. W. Boyce, contra.

Mr. Justice MILLER, after stating that a careful examination of the record satisfied the court that the decree was a joint decree, and that the appeal was clearly taken by Herndon alone, delivered its opinion as follows:

It is the established doctrine of this court 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; and in chancery cases, all the parties against whom a joint decree is rendered must join in the appeal, or they will be dismissed. There are two reasons for this: 1. That the successful party may be at liberty to proceed in the enforcement of his judgment or decree against the parties who do not desire to have it reviewed. 2. That the appellate tribunal shall not be required to decide a second or third time the same question on the same record.¹

In the case of Williams v. Bank of the United States,² the court says that where one of the parties refuses to join in a writ of error, it is worthy of consideration whether the other may not have remedy by summons and severance; and in the case of Todd v. Daniel,³ it is said distinctly that such is the proper course. This remedy is one which has fallen into disuse in modern practice, and is unfamiliar to the profession; but it was, as we find from an examination of the books, allowed generally, when more than one person was interested jointly in a cause of action or other proceeding, and one of them refused to participate in the legal assertion of the joint rights involved in the matter. In such case the other party issued a writ of summons, by which the one who refused to proceed was brought before the court, and if he still refused, an order or judgment of severance was made by the court, whereby the party who wished to do so could sue alone. One of the effects of this judgment of severance was to bar the party who refused...