§ 1627. All parties must join.- Less than all the parties to a joint decree cannot appeal without a summons and severance in the court below. Ex parte Mussina, 20 How., 289. See the case, $$ 63, 64. See § 1594. § 1628. Where only one party to a joint decree appeals, the appeal will be dismissed. Clifton v. Sheldon,* 23 How., 481; Doty v. Strong,* 1 Pin. (Wis.), 167. Where only one party appeals, if the appeal brings up so much of the case and such of the parties as are necessary for a determination of his rights, the appeal will not be dismissed. Milner v. Meek,* 5 Otto, 258. § 1629. Where a joint and several judgment is rendered against several defendants,. they may separately sue out writs of error. Cox v. United States, 6 Pet., 178. § 1630. A defendant in equity, who has a separate interest, may appeal without joining the other defendants. Forgay v. Conrad, 6 How., 203 (S$ 340-342); Brewster v. Wakefield, 22 How., 128. § 1631. It seems that in an action for a marine trespass against two, if there is a joint decree for damages, either can appeal separately, if, by their plea, they have severed their interest, or have joined in pleading the general issue; but not if they pleaded a joint justification. Thomas v. Lane, 2 Sumn., 3. § 1632. Severance.- Where the record shows that written notice was served on co-defendants and that they refused to join in a writ of error, the writ will be sustained without the necessity of a summons and severance. (Masterson v. Herndon, 10 Wall., 418, cited.) O'Dowd v. Russell,* 14 Wall., 402. § 1633. If the defendant in error appears and defends the action, on a writ of error sued out by one of several of the original defendants without a request that the other defendants should be summoned and severed, he will be held to have waived such irregularity. Amis v. Smith, 16 Pet., 314. § 1634. It seems that where one of several defendants brings a writ of error in which the others are unwilling to join, he must do it in the name of all, and those who refuse to appear and assign errors must be summoned and severed, and then the writ of error must be proceeded in by the rest only; and the party who prosecutes the writ will not be compelled to proceed until they have been summoned and severed and the other parties will thus be forever after barred of the writ. As the practice of summons and severance is not common, the proper practice would be to enter a rule requiring all to join or be severed. Doty v. Strong,* 1 Pin. (Wis.), 167. § 1635. Intervention.- Persons may be permitted to become parties to a suit for the purpose of taking an appeal. Sage v. Central R. Co., 3 Otto, 419. See the case, §§ 1493–98. In an action commenced in the district court of Louisiana to confirm a Spanish grant, a third person whose rights are barred under the act of congress allowing such actions cannot intervene in the appellate court and assert his title under the original action. United States v. Patterson, 15 How., 12. § 1636. In prize proceedings persons claiming to be interested in the property sought to be condemned, who were not parties to the proceedings in the courts below, and who consequently have no standing in the supreme court, either as appellants or as appellees, will not be allowed, on appeal, to intervene, for the reason that to allow such intervention would be to exercise original instead of appellate jurisdiction. The William Bagaley, 5 Wall., 411. § 1637. After a decree of foreclosure taken pro confesso, certain parties asked and obtained leave to intervene in the suit in the same manner and with a like effect as if they had been named in the original and supplemental bills. Afterwards the case was referred to a master, to whose report the intervenors excepted. The report was followed in the final decree, and, deeming themselves aggrieved, the intervenors claimed an appeal, which the court below refused to grant. Held, that the intervenors had a right to appeal, and that mandamus would lie to the circuit court to enforce it. The allowance of an appeal follows of course if prayed for by one who has a right to it, and the words of the statute, "shall be allowed," are imperative. Ex parte Jordan, 4 Otto, 251. § 1638. Where the supreme court reversed a decree and remanded the case for the lack of averments in the bill which would enable it to dispose of the case, with directions to allow the proper amendment, and it was suggested that there were other persons who should be made parties, but whose application to the court below was refused because not made in time, the supreme court directed that they be added as parties. Harrison v. Nixon, 9 Pet., 505. § 1639. Rights of parties not appealing. Parties who do not appeal from a final decree of a circuit court, which is regular in form, cannot be heard in opposition to the decree when the cause is removed to the supreme court by the opposite party, unless it appears that the proceedings in removing the cause were unauthorized and irregular. They may be heard in support of the decree, and in opposition to every assignment of error filed by the appellants. The Stephen Morgan,* 4 Otto, 599; Mount Pleasant v. Beckwith, 10 Otto, 527. § 1640. On appeal to the supreme court the appellee can ask nothing but what the decree appealed from gave him. It is the appellant who complains of the decree, and only such questions will be examined as are presented by him. The position of the appellee is defensive simply. It is only when both parties appeal that the cause is open for examination as it is in the lower court. Canal Company v. Gordon, 6 Wall., 568. § 1641. On an appeal from the decree of the circuit court in a suit in equity the supreme court can know no parties except those to the record, and will permit no one who may deem himself interested to appear by counsel and interfere. Harrison v. Nixon, 9 Pet., 492. § 1642. Where both parties to a decree appeal, and one appeal is dismissed for want of prosecution, the other party can only be heard in support of the part of the decree covered by the appeal dismissed. An appeal brings up only what was decided adversely to the appellant. Loudon v. Taxing District, 14 Otto, 774. § 1643. In the supreme court the party not appealing cannot take advantage of an error in the decree against himself; nor, it seems, can the appellants allege error in the decree against the appellees. If the appellees desire to avail themselves of error in the decree of the court below they must take a cross appeal, or they must be held to have waived the error. Chittenden v. Brewster, 1 Wall., 196. § 1644. After an appeal has been dismissed by stipulation of the parties, in a case involving a survey under a Mexican grant, in which the appellant in the record was the United States simply, such dismissal will not be vacated upon the application of parties whose names do not appear of record as parties to the case, even though it may appear that private parties interested in the lands were prosecuting under the name of the government. United States v. Estudillo, 1 Wall., 715. § 1645. The United States, in a proceeding to confirm a title to a Mexican grant, if they do not appeal from the order of the district court confirming a survey made in such proceedings, will not be heard in the supreme court to question the correctness of the survey. Alviso v. United States, 8 Wall., 342; The Fossat Case, 2 Wall., 704. § 1646. The supreme court, upon an appeal from a decree in an admiralty proceeding, will not take into consideration the interests of parties not appealing. M'Donough v. Dannery, 3 Dal., 189. Such parties will only be heard in favor of the decree. The Slavers (Reindeer), 2 Wall., 394. The rule applies in collision cases. The Quickstep, 9 Wall., 672. § 1647. Under the judiciary act of 1789, and acts amendatory thereof, both parties in an admiralty suit may appeal from the decree of the court below; but where only one party appeals the other is bound by the decree in the court below, and he cannot assign error in the appellate court, nor can he be heard except in support of the decree from which the appeal of the other party is taken. The Maria Martin, 12 Wall., 40. § 1648. A libel was filed in the district court against a tug and her tow for damages resulting from a collision. Before entry of the decretal order in the suit, the owners of the vessel filed a paper in court, by which they agreed to take upon themselves the entire defense of the suit, both in their own behalf and in behalf of the tug, and promised to pay the libelants whatever damages might be assessed against the tug. The decree of the district court being against the claimants, the owners of the vessel appealed from the whole decree. On appeal to the supreme court by the owners of the tug, the court intimates that although, as a general rule, a party who does not appeal cannot be heard against a decree, yet in this case the appeal of the owners of the tug was allowed, but the court suggests that there exist some well grounded doubts as to the regularity of the proceeding. The Maby and Cooper, 14 Wall., 214. § 1649. In case of the appeal to the supreme court by the owners of a steam tug, from a decree against such tug and its tow, rendered by the circuit court on an appeal by the owners of the tow alone from the decree of the district court against both tug and tow, the question whether the owners of the tug can appeal will not be considered by the supreme court where it appears that the decree against the tug must be affirmed. Ibid. § 1650. Defect of parties.— If, on appeal from the circuit court in an equity case, it appears to the supreme court that there is a defect of parties which will prevent a decree giving the proper relief, the cause will be remanded to the circuit court with directions to allow the necessary and proper amendments. Lewis v. Darling, 16 How., 8. It seems that the case may be remanded at any time before the final hearing. West v. Smith, 8 How., 410. 1651. In a case appealed to the supreme court, where it appears that there is a defect of parties which will prevent the giving of a proper decree, the decree of the court below must be reversed, though such objection was not taken there, and the cause remanded to permit the proper and necessary amendments. Hoe v. Wilson, 9 Wall., 503. § 1652. It seems that although the objection of the want of proper parties may be made in the supreme court upon the hearing of an appeal, yet it should not prevail except in very strong cases, and where the court perceives that a necessary and indispensable party is wanting. Mechanics' Bank of Alexandria v. Seton, 1 Pet., 306. § 1653. Landlord and tenant.- Where a judgment in ejectment was recovered against a deceased tenant in Illinois, it was held that the landlord might sue out a writ of error in the name, and without the consent, of the heirs of the tenant; and especially as he became liable for the costs and expenses. Kellogg v. Forsyth,* 24 How., 186. See § 1602. § 1654. Death of a party.—It seems that if, after the death of a party to an action in a lower court, the other party wishes to obtain a review of the case upon a writ of error, he should petition the lower court for leave to revive the action in the name of the widow and heirs of the deceased; and that, if the inferior court should refuse such leave, he should apply to the supreme court for leave to issue the writ of error in the names of such representatives. McClane v. Boon, 6 Wall., 245. § 1655. Pending a writ of error to the supreme court, which was afterwards dismissed, one of the defendants in error died. Subsequently another writ of error was sued out, and the name of the deceased was included as one of the parties. Held, that the writ was improperly brought, and must be dismissed on motion. Ibid. § 1656. Assignee in bankruptcy.- Where a writ of error was sued out by three partners, two of whom were bankrupts, and a motion was made to dismiss the writ on the ground that it could only be prosecuted by the assignee of the bankrupts, and such assignee had petitioned to be substituted, the order of substitution was made, and the assignee was allowed to prosecute the writ in behalf of the bankrupts. It seems that in such a case the solvent partner might prosecute the writ himself, using, if necessary, the names of the bankrupts. Gates v. Goodloe, 11 Otto, 613. See, also, §§ 51, 83. XIII. CITATION. SUMMARY-Citation or waiver necessary, § 1657.— Appeal taken after adjournment, §§ 1658, 1660.- Security taken after the term, §'1659.— Notice by publication, § 1661.— Signed by clerk, § 1662. — Service on attorney or executrix, § 1663.— Service where a state is a party, § 1664. § 1657. A citation, with due return, or a waiver by gencral appearance or otherwise, is indispensable to jurisdiction on appeal. Alviso v. United States, § 1665. See § 1678, 1681. $1658. The act of 1803 subjects appeals from decrees in chancery to the rules and regulations which govern writs of error. Under that act, where the appeal is taken after the court has risen a citation is necessary, and it must be served thirty days before the return day of the appeal or writ of error. Yeaton v. Lenox, §§ 1666, 1667. § 1659. Where security is taken after the term, the citation must be served even though the appeal was taken in open court. National Bank v. Omaha, § 1668. § 1660. Service of the citation is necessary where the appeal is taken out of term. An omission, however, will not avoid the appeal, but the court may grant summary relief by imposing such terms upon the appellants as under the circumstances may be legal and proper. Dayton v. Lash, § 1669. § 1661. Where a party appears and litigates his rights in the lower court, a judgment against him on writ of error, with notice by publication, is binding, where such process is authorized by the statute, and is evidence against him of the value of slaves in controversy. Nations v. Johnson, §§ 1670-1674. § 1662. Where the citation is signed by the clerk instead of by the judge, the writ of error will be dismissed. United States v. Hodge, § 1675. See §§ 1685, 1697. § 1663. Service of citation on the attorney or counsel of record of the proper party is sufficient; but service on his executrix or law partner is not sufficient, and where such service was made the writ of error was dismissed. Bacon v. Hart, § 1676. § 1664. Where an officer of a state prosecutes for the state, the citation must be served on him. The tenth rule of the supreme court, requiring service on the chief executive magistrate and attorney-general of the state, applies to those cases only in which the state is a party on the record. Poydras de la Lande v. Treasurer of Louisiana, § 1677. [NOTES.-See §§ 1678-1704.] 1055 ALVISO v. UNITED STATES. (5 Wallace, 824. 1866.) APPEAL from U. S. District Court, Northern District of California. Opinion by CHASE, C. J. STATEMENT OF FACTS.- The final decree in the district court was rendered on the 8th September, 1863, and an appeal was allowed, on motion of the claimant, on the 18th November, 1863. Upon this appeal no action was taken by the appellants. On the 23d February, 1864, an appeal was again allowed, and the record was brought to this court and filed, November 11, 1864. § 1665. Citation necessary to confer jurisdiction. (a) This was in time, but no citation was issued to the adverse party, and there is nothing to show any waiver; and a citation, with due return, or waiver by general appearance or otherwise, is indispensable to jurisdiction on appeal. The writ, therefore, must be dismissed. YEATON v. LENOX. (7 Peters, 220-222. 1833.) APPEAL from U. S. Circuit Court, District of Columbia. STATEMENT OF FACTS.- In this case a decree was pronounced by the court of the United States for the county of Alexandria, in December, 1829, from which the defendants in that court appealed, but did not bring up the record. At January term, 1832, the appellees, in pursuance of a rule of this court, brought in the record, filed it, and moved that the suit should be dismissed. The court ordered a dismission. On the 9th day of March, 1832, a citation was signed by the chief justice of the court for the District of Columbia, citing the plaintiff's in the original action to appear before the supreme court, then in session, and show cause why the decree of the circuit court should not be corrected. A copy of the record was returned with this citation "executed," and filed with the clerk. The appellees move to dismiss the suit because the record has been irregularly brought up. § 1666. A citation is necessary where the appeal is taken after the court has risen. The act of March, 1803, which gives the appeal from decrees in chancery, subjects it to the rules and regulations which govern writs of error. Under this act it has been always held that a decree may be prayed in court when the decree is pronounced; but if the appeal be prayed after the court has risen, the party must proceed in the same manner as had been previously directed in writs of error. § 1667. The citation must be served thirty days before the return day of the appeal or writ of error. (b) The judicial act directs that a writ of error must be allowed by a judge, and that a citation shall be returned with the record; the adverse party having at (a) In Innerarity v. Byrne,* 5 How., 295, it was held that the citation was not necessarily a part of the record; that the presumption is that one was issued when the writ of error was allowed, and that it may be proved aliunde. In Pierce v. Cox,* 9 Wall., 786, it was held that the appellant could not dismiss the appeal for want of a citation, the appellee being in court, and making no ojection to the want of a citation. In the case of Alviso v. United States, supra, the appeal was dismissed for want of a citation, but at the next term, on its being shown that a citation was signed and served, and filed with the clerk, and was afterwards lost in a fire which destroyed the clerk's office, the court held that the case was not a proper one for a certiorari, and reinstated the appeal. Alviso v. United States,* 6 Wall., 457. (b) In the case of Lloyd v. Alexander,* 1 Cr., 365, the court said that the change in the sessions of the courts since that statute was passed made it difflcult to form a rule for the service of citations, and held that "at present, least thirty days' notice. This notice, we understand, is thirty days before the return day of the writ of error. In this case the appeal is not allowed by the judge, and the citation is to appear before the court then sitting. The record is brought up irregularly, and the cause must be dismissed. NATIONAL BANK v. OMAHA. (6 Otto, 737, 738. 1877.) APPEAL from U. S. Circuit Court, District of Nebraska. STATEMENT OF FACTS.- The decree in this case was rendered November 13, 1874; and at the end appears the following entry: "Whereupon said complainant, by its solicitor, prays an appeal to the supreme court of the United States, which is allowed; and bond to be given on said appeal is fixed at $500." A bond was filed September 30, 1875, which appears to have been approved by the clerk, and not by the judge. No citation has been issued or served, and there is no appearance in this court by the appellees. § 1668. Citation must be served if security is taken after the term. Security must be approved by the judge. We have decided at the present term, in Sage v. Railroad Company, 6 Otto, 712, that, even though an appeal is asked for in open court, if the security is not taken until after the term, "a citation should be issued to bring in the parties, unless they voluntarily appear, for, until the security has been accepted, the allowance of the appeal cannot be said to have been perfected;" and, in O'Reilly v. Edrington, 6 Otto, 724, that "the security upon writs of error and appeals must be taken by the judge or justice. He cannot delegate this power to the clerk." Appeal dismissed. DAYTON v. LASH. (4 Otto, 112, 113. 1876.) APPEAL from U. S. Circuit Court, District of Minnesota. STATEMENT OF FACTS.-This record shows that an appeal was allowed, a supersedeas bond approved and a citation signed February 26, 1876; but it does not show a service of the citation, and the affidavits presented upon this motion fail to satisfy us that proper service was ever in fact made. The appeal was, however, duly obtained; and the record has been filed and the cause docketed here. We have, therefore, the record; but a service of the citation is necessary to bring the parties before us, as the appeal was taken out of term. We cannot proceed to hear and determine the cause until the parties are here, either constructively by service, or in fact by their appearance. § 1669. Service of citation is necessary where the appeal is taken out of term. But a failure to serve the citation will not work a dismissal. (a) Perhaps the language of Mr. Chief Justice Taney, in Villabolos v. United States, 6 How., 90, and in United States v. Curry, id., 112, as well as of Mr. if that citation has not been served thirty days, the court will not take up the case until the thirty days have expired, unless the defendant in error shall appear." And in Welsh v. Mandeville,* 5 Cr., 321, the citation was not served thirty days before the first day of the term, and the court refused to take up the case without consent, although thirty days had then expired, holding that the case of Lloyd v. Alexander only decided that the court will not take up the case until thirty days have expired since the service of the citation, and did not decide that the court would then take it up without consent. (a) In Railroad Co. v. Blair,* 10 Otto, 661, the appeal was taken in court in the presence of the appellees, but at a term subsequent to the rendition of the decree, and no citation was served. The court, following the ruling in Dayton v. Lash, refused to dismiss the appeal, but ordered that unless the appellant serve a citation by a certain 1057 VOL. II-10 |