AIKEN et al. v. SMITH, 54 F. 894

PARDEE, Circuit Judge. This suit was instituted in the court below by a libel brought by appellee against the steamboat Whisper, and against all persons intervening for their interest therein in a cause of subtraction of wages and damages, civil and maritime. Admiralty process having been issued and served, and the steamboat Whisper seized, the following claim was entered: “And now carnes W. E. Barre, master, who on oath states that he is master of the steamboat Whisper, and that John E.

Aiken is -the managing owner 1 hereof, and deponent is lawful bailee of the owners, and prays for the release of the vessel on bond.” Release being ordered on the said claim, a release bond was given, signed by William E. Barre, master and bailee for owners of the steamboat Whisper, with Bernard H. Menge as surety. A sworn am swer was filed in the cause by John F.

Aiken, styling himself “claimant and managing owner of the steamboat Whisper.” Upon the issues made by the libel and this answer, the cause was heard, and a decree rendered as follows: “It is therefore ordered, adjudged, and decreed that the libelant, Charles Smith, do have and recover from the steamboat Whisper the sum of five hundred and six dollars and seventy-live cents, as follows: $6.75, amount tendered by claimant for wages due; and $500, damages, — with legal interest from judicial demand and costs of suit.

And whereas said steamboat Whisper was released from seizure and restored to her owner on giving bond with William K. Barre, as master thereof and lawful bailee for the owner thereof, with. John. 1<\ Aiken, as principal, and Bernard II. Menge, as surety, it is further adjudged and decreed that the said William E. Barre, master and lawful bailee of the owner of the steamboat Whisper, principal, and Bernard H.

Menge, as surety, be condemned in solido to pay the foregoing judgment, with interest at the rate of five por cent, per annum from judicial demand, and costs of stilt” From this decree an appeal was taken to this court by John F. Aiken, J. B. Woods, Thomas K. Voorheis, E. J. Comeaux, and Walter Comeaux, styling themselves “owners of the steamboat Whisper,” and by Bernard H. Menge, surety on the bond for the release of said steamboat "Whisper, and by William Barre, master and lawful bailee of said steamboat. Appellee moves to dismiss as follows: “First.

As to all appellants, because claimant has taken into the appeal herein other parties than those who are parties to this suit, viz. J. B. Woods, Thomas K. Voorheis, B. J. Comeaux, and Walter Comeaux, and has appealed jointly with them. Second. And, in case the above should he overruled, then he moves to dismiss the appeal herein as to said J. B. Woods, Thomas IC Voorheis, H. J. Comeaux, and Walter Comeaux, because neither of them arc parties to this cause, and there is no judgment against them or either of them. Third.

And, in case neither of the above are allowed, then appellee moves to dismiss said appeal as to John F. Aiken, because there is no judgment against him or in his favor.” A person not a party nor privy to a judgment or decree cannot appeal therefrom. Ex parte Cutting, 94 U. S. 14; Guion v. Insurance Co., 109 U. S. 173, 3 Sup. Ct. Rep. 108; Elwell v. Fosdick, 134 U. S. 513, 10 Sup. Ct. Rep. 598. It is apparent that J. B. Woods, Thomas K. Voorheis, E. J.

Com-eaux, and Walter Comeaux were not parties to the suit in the court below; and there is nothing in the record to show that they are privy to the said suit, except that in the unsworn petition for appeal they are styled “owners of the steamboat Whisper.” Having no right to join in the appeal, it follows that as to the parties named the appeal should be dismissed. Such dismissal, however, ought not to affect the appeal as to the remaining appellants, as the joinder complained of has not prejudiced the appellee.

The rule that, where there is a joint judgment against several parties, all must join in the appeal, or there must be a summons and severance or equivalent proceeding, (see Estis v. Trabue, 128 U. S. 230, 9 Sup. Ct. Rep. 58,) is said by the supreme court in Owings v. Kincannon, 7 Pet. 399, to be based on the propriety, if not necessity, of bringing the whole cause before the court. In the case of Hardee v. Wilson, 146 U. S. 179, 13 Sup. Ct. Rep. 39, (recently decided,) the same court says that there are two reasons for the rule:

(1) That the successful party may be at liberty to proceed in the enforcement of his judgment or decree against the parties who do not desire to have it reviewed; (2) that the appellate tribunal shall not be required to decide a second or third time the same question on the same record. In the present appeal, William E. Barre is master of the steamboat Whisper, and lawful bailee thereof, representing all the owners, and his appeal brings the whole cause to this court, and no other parties appellant were necessary. John F. Aiken’s interest appears of record, as does that of Bernard H. Menge.

Both had a right to appeal, and their joinder with Barre does not prejudice appellee. The motion to dismiss the appeal should be granted as to J. B. Woods, Thomas E. Voorheis, E. J. Comeaux, and Walter Comeaux, but overruled as to the other appellants, each party to pay his own costs on this motion; and it is so ordered.