Summerlin v. Reeves

U.S. Court of Appeals for the Third Circuit
Summerlin v. Reeves, 29 Tex. 85 (3d Cir. 1867)
Coke

Summerlin v. Reeves

Opinion of the Court

Coke, J.

A motion is made on various grounds to dismiss this case. And, among others, because the 'petition for the writ of error describes the judgment as having *88been rendered in favor of John Reeves, executor of Daniel Lloyd, deceased, when in fact (and it is so shown by the record) the judgment was rendered in favor of John Reeves, executor of Daniel Lloyd, deceased, and L. L. Lloyd.

The motion to dismiss cannot be maintained on this ground, because the misdescription is cured and the judgment sufficiently identified by the writ of errror issued by the clerk, .which does sufficiently describe the judgment complained of and the parties to it. (Hillebrant v. Brewer, 5 Tex., 568; Wright v. Williams, 12 Tex., 36.)

Another ground assigned in the motion is, that L. L. Lloyd, one of the parties in whose favor the judgment was rendered in the court below, is not cited, and is not a party to the writ of error.

This is a fatal objection to the writ, for which the case must be stricken from the docket.

. The judgment sought to be revised is indivisible. It is rendered in favor of the two plaintiffs, John Reeves, executor, and L. L. Lloyd. The latter is not informed that her rights in this judgment are assailed in this court. It is a dictate of natural justice, as well as a general principle of law, that every person to be directly affected in his interest or rights by the judgment of a court of record is entitled to be named or described in the suit, to have notice of it, and an opportunity of being heard in defense of his rights.

Proceedings by writs of error are not exempt from the operation of this rule. (Burleson v. Henderson, 4 Tex., 56; Porter v. Rumey, 10 Mass., 66; Johnson v. Robeson, Galveston T., March 30, 1864,) [27 Tex., 526.]

Mr. Daniel, in his Treatise on Chancery Practice,- deduces the rule from the authorities, that “ in the case of a re-hearing or appeal, all parties interested in supporting the decree or order appealed from are entitled to be heard; but no party except the appellant can be heard in support of the appeal.”

*89It is unnecessary to adduce additional argument or authority in support of a proposition so plain. The motion to dismiss is sustained.

Dismissed.

Reference

Full Case Name
Ebenezer Summerlin et ux. v. John Reeves
Status
has not been cited
Syllabus
Where the. petition for a writ of error omitted the name of a plaintiff, but the writ of error issued by the clerk properly described the judgment, a motion to dismiss will not be sustained. (Paschal’s Dig., Art. 1495, Note 587.) Where one. of the plaintiffs is not a party to the writ of error, and is not cited, it is a fatal objection. In the case of re-hearing or appeal, all parties interested in supporting the decree or order appealed from are entitled to he heard, but no party except the appellant can be heard in support of the appeal.