32 U.S. 399 - Thomas Deye Owings v. Andrew Kincannon

Bibb, for the appellee, moved to dismiss the appeal, on the ground, that the decree of the circuit court of Kentucky was against Thomas Deye Owings, James M. Blakey, Milton Stapp and Charles Buck, as well as against the appellants; yet the appeal had not been prosecuted by any others than those named in the citation, Lewis W. R. Phillips, Sally Head and Nancy Head. By the record, it appears, that the appeal was allowed generally; but the bond is given by L. W. R. Phillips, Sally Head and Nancy Head only. It is, therefore, the proceeding of those parties only. No exception is taken to the execution of the bond, as by the decisions of the state courts of Kentucky, and also of the circuit court, a bond requiring surety, in legal proceedings, need not be executed by any but the surety of the parties for whom he has consented to become bound.

Loughborough opposed the motion. He contended, that as the appeal had been allowed to all the parties, the bond and citation operated generally, and all the defendants were before the court as appellants. But if this was to be considered as the separate appeal of some of the defendants, it was legal. Coxe v. United States, 6 Pet. 172. The appearance of the defendant in error, which was entered at January term 1831, and other proceedings on his part, by motion in the case, deprived him of a right to move to dismiss the appeal at this term.

MARSHALL, Ch. J., delivered the opinion of the court.

This is an appeal from a decree pronounced in the court of the United States for the district of Kentucky, by which Thomas Deye Owings, James W. Blakey, Ralph Philips, Milton Stapp, John L. Head and Charlas Buck were directed to convey and release to the complainant, all their right, title and interest in a tract of land mentioned in the decree. An appeal was allowed, and a bond executed by Lewis W. R. Phillips, Sally Head and Nancy Head, the condition of which recites 'that whereas, Lewis W. R. Phillips, Sally Head and Nancy Head have prayed for and have obtained an appeal from the seventh circuit court of the United States in and for the Kentucky district, to the supreme Court of the United States, in a certain suit in chancery, wherein said Andrew Kincannon was complainant, and Thomas D. Owings, Ralph Phillips, the ancestor of the said L. W. R. Phillips, and John L. Head, the husband of said Sally Head and ancestor of Nancy Head, were defendants. Now, if the said Lewis W. R. Phillips shall well and truly prosecute,' &c.

The particular statement in the bond is considered by the court as explainting the general entry granting the appeal, so as to show that from a joint decree against six defendants, only two, represented by their heirs, have appealed. A motion is now made to dismiss this appeal, because the decree being joint, all the parties ought to join in the appeal.

Upon principle, it would seem reasonable, that the whole cause ought to be brought before the court, and that all the parties who are united in interest ought to unite in the appeal. We have, however, found no precedent, in chancery proceedings, for our government in this case. But in the case of Williams v. Bank of the United States, 11 Wheat. 414, which was a writ of error, sued out by one defendant, to a joint judgment against three, the writ was dismissed; the court being of opinion, that it had issued irregularly, and that all the defendants ought to have joined in it.

By the judiciary act of 1789, decrees in chancery pronounced in a circuit court could be brought before this court only by writ of error. The appeal was given by the act of 1803. That act declares, 'that such appeals shall be subject to the same rules, regulations and restrictions as are prescribed by law in cases of writs of error.' Previous to the passage of this act, the decree under consideration could have been brought into this court only by writ of error, in which writ all the defendants must have joined. The language of the act which gives the appeal, appears to us to require that it should be prosecuted by the same parties who would have been necessary in a writ of error. We think also, that the same principle would be applicable, from the general usage of chancery, to make one final decree binding on all parties united in interest. The appeal must be dismissed, having been brought up irregularly.

ON consideration of the motion made in this cause, on a prior day of the present term of this court, to wit, on Thursday, the 17th day of January, by Mr. Bibb, of counsel for the appellee, to dismiss this appeal, on the ground that only two of the parties, represented by their heirs, have joined in this appeal, the decree of the said circuit court being a joint decree against six persons, and of the arguments of counsel thereupon had: It is considered by the court, that this appeal be dismissed, because only a part of those against whom the decree was made have joined in the appeal: whereupon, it is ordered, adjudged and decreed by this court, that this appeal be and the same is hereby dismissed, it having been brought up irregularly. And it is further ordered, adjudged and decreed by this court, that said appeal be and the same is hereby dismissed, with costs.