Appellees Brief — Hartford Accident & Indemnity Co. v. Bunn

FITE COPY - | al

| SUPREME COURT OF THE UNITED STATES.

OCTOBER TERM, 1931 t ntnvanenne ns

~ No. 333 -

HARTFORD ACCIDENT & INDEMNITY

COMPANY, Appe.iant, ©

Vs.

0. L. BUNN, Dorne Business as Bunn ELectrie

CoMPANY, ET ALS., APPELLEE, .

APPELLEES’ BRIEF IN OPPOSITION TO APPEL. -

_.LANT’S MOTIONS AND CONSENTS TO MAKE

AETNA CASUALTY & SURETY COMPANY A

PARTY APPELLANT, AND TO AMEND PRO-’

CEEDINGS ON APPEAL.

>

<Dst Pose a 2S a bor PED Die TARR ct @ 7S. SS

v MARCELLUS GREEN,

v GARNER W. GREEN,

v GERARD BRANDON,

G. H. BRANDON,

CHAS. F. ENGLE,

S. B. LAUB, .

W. A. GEISENBERGER,

v L. T. KENNEDY,

E. H. RATCLIFF,

Y JOS. E. BROWN;

W. C. MARTIN,

C. F. BYRNES,

Attorneys ‘for ain.

MARCELLUS GREEN, _ . js

By GARNER W. GREEN,

_Of Counsel’for Appellees. —

" : y % ‘ ti 4? nA Rt ae

whit ae Seer ane er ate “

INDEX.

Cases CITED.

American Baptist Home Mission Society v. Barnett et al. (Cir-

cuit Court of Appeals, Second Circuit), 26 Fed. (2) 350:

certiorari denied, 278 U. S. 626; 73 Law Edn. 546..........

Hilton y. Dickenson, 108 U. 8. 165, 168; 27 Law Edn. 688, 689.

Iumon v, Speer Hardware Co., 190 Fed. 734; 111 C. C. A. 462.

_ Mills v. Brown, 16 Pet. 525; 10 L. Ed. Dtibadbehakeséscseac

Rust vy. Jackson, 250 U. 8S. 465 GR T. Bd. BBL... ccc cc cee

—1450

Page

>

—--—

te i a

a

1’ ‘ - —_—

4 ° .

° t

. ‘ °

‘ ,

.

.

.

‘

‘

° ©

. .

. ° , .

«

7 °

’

.

.

.

.

.

« ‘

.

;

.

.

,

.

.

‘ °

.

.

* Lh

‘ a ees ee ok» the cee Gn, to, a : &,

.

SUPREME COURT OF THE UNITED STATES.

OCTOBER TERM, 1931.

.

.

No. 333

HARTFORD ACCIDENT & INDEMNITY

COMPANY, Appetiant,

os ' VS.

O. -L. BUNN, Dore Bustness-as BUNN ELectrIc

| Company, ET ALS., APPELLEE. .

“APPEAL FROM THE SUPREME COURT OF

MISSISSIPPI,

a ’ ;

APPELLEES’ BRIEF IN OPPOSITION TO APPEL.

LANT’S MOTIONS AND CONSENTS TO MAKE

‘AETNA CASUALTY & SURETY COMPANY A

PARTY APPELLANT, AND TO AMEND PRO.

. CEEDINGS ON APPEAL. aes

¢

In the within entitled cause pe Hartford Accident

—& Indemnity Company, Appellant, appealed to the

Supreme Court of the State of Mississippi from an

.

&

/

adverse judgment rendered against .it by the -Chan-

cery Court of Adams County, Mississippi: (R. 58).

The judgmett of the Chancery Court was affirmed -

' as to the appellees here against. the appellant and

against the surety on the supersedeas appeal bond |

from the said Chancery Court to the Supreme Gourt

of the State of Mississippi, , to-wit: Aetna Casualty >

Surety Company (Bottom R. 75). 9:

The judgment rendered by the Mississippi Supreme

Court wis a joint iydgment against the appellgnt,

Hartford. Accident & Indemnity Company, Principal,

and.its surety, Aetna Casualty &.Suréty ‘Company .

7 (Bottom R. 79).

‘The Hartford Accident. & Indemnity Compainy alone

. filed a Suggestion of Error in the Mississippi Supreme

Court, suggesting that the former opinion be corrected

and reversed.

This Suggestion of Error was not t joined i in by Aetna -

Casualty & Surety Company (R. 83).

The Sufgestion ° of Error having been overruled

the joint judgment became final on June 15th, 1931 (R.

90).

A petition for sooenk to the anes Court of the

Dnited States was filed on July 25th, 1931, by the Hart-

ford Accident & Indemnity Company gnly, and this

petition was-not uns in by Aetna ofa & Surety

Company {R.'91).

- There was an Assignment of Errors filed on July

25th, 1931, in the Supreme Court of Mississippi by

Hartford Accident, & Indemnity Company ‘in connec-

‘tion with its petition for the allowance of an appeal. _

to the Supreme’ Court of the United States, but this

ss]

: -

ee ‘ Vardi ; . -

; > . ‘ as } ~

> ,

: { ch PONE DPE APIO I IN ELE EDT RTE, TM

- .

' | ate

Assignment of Errors was not joined i in by Aetna Cas-

ualty & Surety Company nor did the Aetna Casualty

‘& Surety Company file a separate petition for appeal.

_or Assignment of Errors (R. 92):

On July 25th, 1931, there was an jails didiatien an

appeal from the Supreme Court of the State of Missis- |

sippi to the United States Supreme’ Court to the Hart-

ford Accident & Indemnity 0 Company, but there was no

such order in favor of Aetna Casualty & Surety Com-:-

pany (R.95). ® ; °

The Hartford Accident & Indemnity Company ad-

dressed a Praecipe for transcript of record on July

25th, 1931, to the Clerk of the Supreme Court of Missis-

.sippi (R. 96).

' The record discloses that copy of this en was -

served on all appellees, but nose was served upon the

‘ Aetna Casualty & Surety Company nor did the Aetna

‘Casualty & Surety Company join in the settee ‘as

disclosed by the Record. .

The Record at page 100 discloses a statement of

points té be relied upon by Hartford Accident & In-

demnity Company, and there was an acknowledgment.

“of service of the statement of points by all appellees

(R. 102) but nowhere is there a statement -of points

to be relied upon by Aetna Casualty & Surety Com-

pany nof any record of service thereof upon the Aetna :

Casualty & Surety Company.

. The time to apply for Writ of Error and appeal ™_

~~ any party, including the Aetiia Casualty -& Surety

Company, has now passed, since more than three’

months have elapsed since the entry of the judgment

or oe of the Rapreme Court of the. State of Missis-

4

sippl in this cause. In fact the time elapsed on Sep-

tember 15th, 1931 (R. 86); ,

See 43 Statutes at Large, 940; U.S. C. A., Title 28,

Section 350.

And the requirement that application for appeal:

must be made within three months is mandatory and

jurisdictional and cannot be avoided by consent,

waiver or order of the Court.

Rust v. Jackson, 250 U.S. 76; 68 L. Hd. 851.

Scale Co: V. Computive Scale Co., 261 U.S. 399;

67 L. Ed. 719. -

Robte v. Hart, Shaffner & Murs, 40 Fed. (2) 871.

American Baptist Home Mission Society v. Bar-

nett et al. (Circuit Court of Appeals, Second —

Circuit), 26 Fed. (2) 350; certiorari denied

278 U.S. 626; 73 Law Edn. 546. |

The appelices filed in this Court a motion to dismiss

the appeal herein, and the first point as the basis of

said motion was that the judgment rendered ‘in the

Supreme. Court of Mississippi ‘was a joint judgment

against Hartford Accident & Indemnity Company and

Aetna Casualty & Surety Company, surety on the ap-

peal bond, and that no appeal has -been taken by the

Aetna Casualty & Surety Company, and hence there .

is no jurisdiction.of the appeal at the instanee of. Hart-

ford Accident & Indemnity Company alone. '

It was not until this motion to dismiss or affirm was

filed in this Court that Aetna Casualty & Surety Com-

. peony moved for joinder in appeal in this Court.

“It is well settled that all parties against

whom a judgment of the kind hereinabove shown

)

is entered must join in an appeal or formerly in

a writ of error in,event that any one of them

takes out such appeal. or writ of error; or else

there must be a proper summons and severance

in order to allow of the prosecution of the writ

by, any less than the’ whole number of the de- -

fendants against whom the judgment is en-

tered.’” .

Williams v. Bank of United States, 24

_ U.S. (11 Wheaton) 414; 6 Law Edn.,

508.

And as in the present case here on appeal:

‘Where a judgment i is distinctly one against

a defendant and his surety on a bond, jointly,

for a definite sum of money, and there i is noth-

ing distinctive in the judgment, all the parties”

against whom the judgment is entered must join

in a writ of error or appeal, or else there must

be a proper summons and severance, in order

to allow of the prosecution of the writ by any

‘ less than the whole number of the defendants

against whom the judgment is entered.’ ’

Z.N. Estis v. Trabue Davis & Co., 128

U.S. 225; 32 Law Edn. 437; 9 Sup. Ct.

Rep. 58.

ae pect general. judgment rendered against. the

’. original defendant in a case and the surety on

a supersedeas bond given by it is jomt, and

such original defendant cannot alone. review the

same by. writ of error, without summons and

severance as to its co-defendant.”’

Lamon v. Speer Hardware Co., 190 Fed.

734; 111 C. C. A. 462. .

Humes v. Chattanooga Third National

- Bank, 54 Fed. 917; 4 C. C. A. 668.

6

See also D. L. Thomas v. John D. Wyatt, 17 Miss.

(9S. & M.) 308. |

The Aetna Casualty & Stirety Company motion

comes now too late.

‘‘Belated appearance of necessary party ap-

pellant and request to join as an appellant is

not equivalent to summons and severance within

rule requiring joinder in appeal of all parties

‘affected by decree or exclusion by severance of

those failing to join after summons gr notice.”’

American. Baptist Home Mission Society

v. Barnett et al., 26 Fed. (2) 350; cer-

tiorari denied 278 U. S. 626; 73, Law

_ Edn. 546.

‘“Where there lis a substantial defect in a writ

of error, which this Court cannot amend, it has

no jurisdiction.’’

Wilson v. Life & Fire: le Co., 37 U.S.

(12 Peters) 140; 9 Law. Edn. 1032.

It will then of its own motion dismiss the case with-

out awaiting the action of a party.

Hilton v. Dickenson, 108 U. S, 165, 168; 27 Law

- Edn. 688, 689.

Even of the Court could otherwise allow an amend-

ment the fact that the statute has run would: prevent

its doing so in the present case:

Estis v. Trabue Davis & Co., 128 U. S..225; 32.

Law Edn. 437.

Wilson v. Fire & Life Ins. Company, 37 U.S.

(12 Peters) 140;.9 Law Edn. 1032.

7

The Supreme Court of Mississippi has never allowed :

this appeal to Aetna Casualty & Surety Co. and con-

‘sent does not confer jurisdiction. Mills v. Brown, 16 e

Pet. 525; 10 L. Kd: 1055. oo -.

We, therefore, respectfully submit that the motion

by Aetna Casualty & Surety Company to amend pro-

ceedings should be disallowed and overruled and that

the appeal of Hartford Accident & Indemnity Com- 7

pany should be dismissed. :

Respectfully submitted,

. | MARCELLUS GREEN, =

GERARD BRANDON, |

| G. H. BRANDON,

ii | _ CHAS. F. ENGLE,

| S. B. LAUB, |

W. A. GEISENBERGER,

L. T. KENNEDY,

EK. H. RATCLIFF,

JOS. E. BROWN,

W. C. MARTIN,

C. F. BYRNES,

Attorneys for Appellees.

_ MARCELLUS GREEN,

' By GARNER W. GREEN,

7 Of Counsel for Appellees.

I acknowledge receipt of copy of this Brief.

| T. BARRETT JONES,

Atty. Pe Hartford Accident & Indemnity Co..

(1450) | eae

‘

DR eee cee ce eens yeep err eininaneanme psp

: ;