Wolf v. Murphy

• Decision Date: 23 March 1887
• Citation: 32 N.W. 303,21 Neb. 472
• Parties: WOLF v. MURPHY.
• Court: Nebraska Supreme Court

21 Neb. 472

32 N.W. 303

WOLF

v.MURPHY.

Supreme Court of Nebraska.

March 23, 1887.

Syllabus by the Court.

All the parties in a joint judgment are necessary parties to a petition filed by one of their number to reverse it, and may be made so, as plaintiffs or defendants, in conformity with the provisions of the Code, as to parties to civil actions. Smetters v. Rainey, 14 Ohio St. 287.

Error from Seward county.

Lamb, Ricketts & Wilson, for plaintiff.

Norval Bros. and D. C. McKillip, for defendant.

COBB, J.

This action was brought in the district court of Seward county by Joseph L. Murphy, plaintiff, against Thomas Wolf, T. W. Boies, C. W. Barkley, L. G. Johns, Henry Vanderhoff, and Aeneas Hurlburt, defendants, on several causes of action. The causes of action were all joint in form against all of the defendants. The defendants all appeared and answered. A trial was had to the court, which found the issues and rendered judgment in favor of the plaintiff as against the defendants Wolf and Boies, but against the plaintiff and for the defendants Barkley, Johns, Vanderhoff, and Hurlburt. The defendant Thomas Wolf alone brings the cause to this court upon error. No mention is made in the petition in error of either of the other defendants.

In this court the defendant in error moves to dismiss the petition in error upon the following grounds: (1) This court has no jurisdiction of the subject matter. (2) That all the parties interested in the judgment sought to be reversed, as shown by the record, have not been brought before the court. (3) The record shows a judgment against Boies and Wolf for $575, and costs, and a judgment of no cause of action as to the defendants Barkley, Johns, Vanderhoff, and Hurlburt; yet neither Boies, Barkley, Johns, Vanderhoff, or Hurlburt have been parties in this court. (4) The petition in error and summons in error do not set out the names of all the parties to the judgment of the court below.

The argument on the motion was directed chiefly to the omission on the part of the plaintiff in error to make the parties in the court below, in whose favor judgment was rendered, parties to the proceedings in error, plaintiffs or defendants. I do not think that the motion can be sustained on that ground. But I think that it must be sustained for his failure to join Boies, against whom the judgment was rendered, jointly with himself, a party, either plaintiff or defendant, in the proceedings in error.

The point was before the supreme court of Ohio in Smetters v. Rainey, 13 Ohio St. 568, and again, same case, 14 Ohio St. 287. In that case the judgment was a joint one against all of the defendants, one only of whom sought to prosecute error without mentioning his co-defendants. I quote from the syllabus of the case as last presented: “All the defendants to a joint judgment are necessary parties to a petition filed by one of their number to reverse it, and may be made so, as plaintiffs or defendants, in conformity with the...