TODD V. DANIEL, 41 U. S. 521 (1842)

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U.S. Supreme Court

Todd v. Daniel, 41 U.S. 16 Pet. 521 521 (1842)

Todd v. Daniel

41 U.S. (16 Pet.) 521


After the decree of the circuit court, an appeal was claimed by all the defendants and allowed by the court. A part of the defendants, who had originally claimed the appeal before any further proceedings abandoned it, and the residue of them, excepting Todd, have, since the appeal was filed, abandoned it, and Todd only has entered his appearance in the Supreme Court. The record stood in the names of all the appellants. A motion was made to dismiss the appeal for irregularity and want of jurisdiction on the ground that it cannot be maintained in behalf of Todd alone. The court refused to dismiss the appeal.

The proper rule in cases of this sort, where there are various defendants, seems to be that all the defendants affected by a joint decree (although it may be otherwise where the defendants have separate and distinct interests and the decree is several, and does not jointly affect all) should be joined in the appeal, and if any of them refuses or declines upon notice and process (in the nature of a summons, and severance in a writ of error) to be issued in the court below to become parties to the appeal, then that the other defendants should be at liberty to prosecute the appeal for themselves and upon their own account, and the appeal as to the others be pronounced to be deserted, and the decree of the court below as to them be proceeded in and executed.

Davies for the appellee, moved to dismiss the appeal. He stated, that the appeal had been actually entered in the circuit court in the names of the appellants mentioned on the record, but that there were other defendants in the circuit court against whom the decree had been rendered who had not joined in the appeal, not having had any regular notice of such appeal. They were Hayes, Gouch and Westcott. Of the above-named appellants, James Todd alone enters his appearance here, by his counsel, Francis O. J. Smith, Esq., who now brings up the record and proposes to prosecute the appeal on behalf of Todd in this Court singly, without any of the rest, chanrobles.com-red

Page 41 U. S. 522

whose names, however (appearing in the record as appellants), are extended on the docket by the clerk.

The counsel for Todd, by writing filed in the case here February 16, disclaims and disavows any and all appearance for either of the other defendants named as appellants. The other defendants who joined in the appeal have subsequently abandoned any further prosecution of it, and have given notice to the complainant's counsel to that effect, submitting to the decree, and some of them offering to pay their respective amounts, according to the decree of the circuit court, the last notice by the Mitchells being dated January 28, 1842, at which time the appeal here had not been entered nor the record filed.


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