Sheppy v. Stevens, 20.
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
| Citation | 200 F. 946 |
| Decision Date | 25 November 1912 |
| Parties | SHEPPY v. STEVENS. |
| Docket Number | 20. |
200 F. 946
SHEPPY
v.
STEVENS.
No. 20.
United States Court of Appeals, Second Circuit.
November 25, 1912
H. & W. A. Hendrickson and S. A. Hungerford, all of Albany, N.Y. (George M. Palmer, of Cobleskill, of counsel), for plaintiff in error.
R. J. Le Boeuf, of Albany, N.Y., for defendant in error.
Before LACOMBE, COXE, and NOYES, Circuit Judges.
NOYES, Circuit Judge (after stating the facts as above).
It is fundamental that no writ of error lies unless the whole matter in the record be determined. A case cannot be brought up piecemeal. This was regarded as settled law as long ago as Metcalf's Case, 6 Coke, [200 F. 947] 68, decided in the reign of King James I, where an earlier decision was thus approved:
'In trespass by the lord of S. against one for taking his cattle; as to parcel, the defendant pleaded not guilty; and as to the other, he pleaded another plea, upon which the plaintiff demurred, and afterwards the issue was found for the plaintiff, upon which he had judgment; yet he shall not have a writ of error, till the whole matter is determined And the reason of the said case is, that if the record should be removed before the whole matter is determined there would be a failure of right; for the judges of the King's Bench cannot proceed upon the matter which is not determined, and upon which no judgment is given; and the whole record ought to be either in the Common Pleas or in the King's Bench; also the original is entire, and cannot be there and here likewise.'
Metcalf's Case was approved by the Supreme Court of the United States in United States v. Girault, 11 How. 22, 31 (13 L.Ed. 587), where the court said:
'The writ is conditional, and does not authorize the court below to send up the case unless all the matters between all the parties to the record have been finally disposed of. The case is not to be sent up in fragments, by a succession of writs of error.'
And in Holcombe v. McKusick, 20 How. 553, at page 554, 15 L.Ed. 1020, where a demurrer to a part of a replication was sustained but some material allegations were left, the Supreme Court held that the judgment upon the demurrer was not such a final judgment as could be reviewed upon a writ of error and again said:
'The whole of the cause, therefore, in the court below, was not disposed of, and no final judgment rendered, upon which a writ of error from this court would lie. It is the settled practice of this court, and the same in the King's Bench in England, that the writ will not lie until the whole of the matters in controversy in the suit below are disposed of. The writ itself is conditional, and does not authorize the court below to send up the case, unless all the matters between the parties to the record have been determined. The...
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Bendix Aviation Corp. v. Glass, 10470.
...1085, 86 L.Ed. 1478, and Collins v. Metro-Goldwyn Pictures Corporation, 2 Cir., 1939, 106 F.2d 83, with Sheppy v. Stevens, 2 Cir., 1912, 200 F. 946. 12 Winsor v. Daumit, 7 Cir., 1950, 179 F.2d 475, 13 Ray v. Morris, 7 Cir., 1948, 170 F.2d 498; Hart v. Knox County, Tenn., 6 Cir., 1948, 171 F......
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Sears, Roebuck and Co v. Mackey, 34
...but less than all, of the claims presented. See Collins v. Miller, 252 U.S. 364, 40 S.Ct. 347, 64 L.Ed. 616; Sheppy v. Stevens, 2 Cir., 200 F. 946. In cases involving multiple parties where the alleged liability was joint, a judgment was not appealable unless it terminated the action as to ......
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United States v. 243.22 Acres of Land, 349.
...of action involved. Louisiana Navigation Co. v. Oyster Commission, 226 U.S. 99, 101, 33 S.Ct. 78, 57 L.Ed. 138; Sheppy v. Stevens 2 Cir., 200 F. 946. The seeming exception to this rule by which an adjudication final in its nature of matters distinct from the general subject of the litigatio......
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Rector v. United States, 7172.
...action involved. Louisiana Navigation Co. v. Oyster Commission, 226 U. S. 99, 101 33 S. Ct. 78, 57 L. Ed. 138, Sheppy v. Stevens C. C. A. 200 F. 946. The seeming exception to this rule by which an adjudication final in its nature of matters distinct from the general subject of the litigatio......