OpenJurist

33 US 526 Mary Deneale v. John Archer

33 U.S. 526

8 Pet. 526

8 L.Ed. 1032

MARY DENEALE, EXECUTRIX OF GEORGE DENEALE, AND OTHERS,
PLAINTIFFS IN ERROR
v.
JOHN ARCHER AND JOHN W. STUMP, EXECUTORS OF JOHN STUMP,
DECEASED, DEFENDANTS IN ERROR.

January Term, 1834

IN error to the circuit court of the United States for the county of Alexandria, in the District of Columbia.

Upon the opening of the record in this case, it was found that the writ of error had been issued in the name of Mary Deneale, executrix of George Deneale, and others.

Mr Coxe, for the defendants, objected to the writ of error as informal. All the parties to the proceedings in the circuit court should be parties to the writ of error. Those who have not joined in it, are not before the court. The court cannot know who are the persons meant by 'others.'

Mr Lee, for the plaintiff in error, contended, that the record showed who were the parties to the case.

Mr Chief Justice MARSHALL delivered the opinion of the Court.

1

This was the case of a scire facias against devisees to revive a judgment. The scire facias is in its form without precedent, and a demurrer was filed to it. Process on the scire facias issued against four devisees, and service was made upon two only of them. An office judgment was then taken against all the devisees. The two of them on whom the process was served, afterwards appeared, and the office judgment was set aside as to them, and they then pleaded the statute of limitations. There was a demurrer to the replication and judgment against all the devisees.

2

The present writ of error is brought by Mary Deneale 'and others,' as plaintiffs; but who the others are cannot be known to the court, for their names are not given in the writ of error, as they ought to be. Mary Deneale cannot alone maintain a writ of error on this judgment: but all the parties must be joined and their names set forth, in order that the court may proceed to give a proper judgment on the case. The present writ of error must therefore be dismissed for irregularity; but a new one in due form may hereafter be brought to revise the judgment.

3

This cause came on to be heard on the transcript of the record from the circuit court of the United States for the district of Columbia holden in and for the county of Alexandria, and was argued by counsel; on consideration whereof, it is the opinion of this court, that this writ of error is irregular, and should be dismissed, inasmuch as it is in the name of 'Mary Deneale and others,' without naming who those others are; whereupon it is ordered and adjudged by this court, that this case be, and the same is hereby dismissed.