Thomas v. Green County

• Decision Date: 23 July 1906
• Docket Number: 1,483.
• Citation: 146 F. 969
• Parties: THOMAS et al. v. GREEN COUNTY.
• Court: U.S. Court of Appeals — Sixth Circuit

146 F. 969

THOMAS et al. v. GREEN COUNTY.

No. 1,483.

United States Court of Appeals, Sixth Circuit.

July 23, 1906

Alex. P. Humphrey, for plaintiffs in error.

Ernest MacPherson, for defendant in error.

Before LURTON, SEVERENS, and RICHARDS, Circuit Judges.

LURTON Circuit Judge.

This was an action by numerous persons as plaintiffs against Green county upon bonds, and coupons clipped therefrom, issued by that county; the plaintiffs averring that they were jointly the holders and owners of the bonds and coupons upon which the action was brought. The county denied that they were such joint owners, and denied liability upon the bonds and coupons upon several grounds not necessary to be now stated. The issues were by stipulation submitted to the trial judge upon an agreed statement of facts, and there was a judgment against the plaintiffs and in favor of the defendant. From this judgment certain of the plaintiffs have sued out this writ of error.

The defendant in error has entered a motion to dismiss the writ First. Because some of the persons named as plaintiffs below have not joined as plaintiffs in error, and have not been cut off by a summons and severance. Second. Because certain persons are named as plaintiffs in error who were not parties below. Third. Because one of the parties named as a plaintiff in error died more than a year before the judgment complained of, and that the action was never revived by her representative. Fourth. Because no brief has been filed, as required by rule 24 of this court. 90 Fed.lxxxi, 31 C.C.A. clxiv.

The plaintiffs in error meet the matter of the failure of all the plaintiffs to join in suing out the writ by a motion to amend the writ and citation, by inserting in each the names of the omitted plaintiffs below, and to amend the bond or give another. They also move the court to strike from the writ and citation the names of such persons therein appearing as plaintiffs in error who were not parties to the suit. The inclusion of persons as plaintiffs in error who were not parties to the suit is an error which may be corrected by dismissing the writ as to them or by striking their names out. The motion to so strike out the names set out in the motion paper is accordingly allowed, and an order will be so entered.

That persons not parties below were included as plaintiffs in error does not vitiate the writ as to those who were parties such inclusion being of no effect. 'Surpulsage does not vitiate that which in other respects is good and valid' is a maxim applicable to pleading as well as to other written instruments. Brown, Legal Maxims, *604. The right to amend the writ of error and citation by adding omitted plaintiffs depends primarily upon whether the record shows enough to authorize the amendment under section 1005, Rev. St. (U.S Comp. St. 1901, p. 714). Estis v. Trabue, 128 U.S 226, 9 Sup.Ct. 58, 32 L.Ed. 437; Walton v. Marietta Chair Co., 157 U.S. 342, 15 Sup.Ct. 626, 39 L.Ed. 725. Thus in Estis v. Trabue the plaintiffs in error, as well as the defendant in error, were described only by the names of firms. The record disclosed the names composing the firms, and an amendment inserting their names was allowed. In Walton v. Marietta Chair Co. the plaintiff in error was described as administrator of a certain estate. The accompanying record showed that another person named therein claimed to have succeeded the person named as administrator, and that this other had tendered the bill of exceptions and given bond to prosecute the writ of error. The substitution was allowed. In Knickerbocker Life Ins. Co. v. Pendleton et als., 115 U.S. 339, 6 Sup.Ct. 74, 29 L.Ed. 432, the Supreme Court after final judgment discovered that the writ of error was sued out and citation directed and served against P. H. Pendleton, only one of the plaintiffs below; that the appeal bond was made to him alone, but that the supersedeas bond ran to all of the plaintiffs below, and that all subsequent proceedings were entitled in the name of P. H. Pendleton et al. After notice to plaintiff to show cause, the court allowed the writ of error to be amended, set aside the judgment, ordered a new citation to all the plaintiffs below, and when same...