Gay v. Richardson

Morton J. delivered the opinion of the Court. There is no doubt that the writ was properly and necessarily brought in the name of all the original defendants. All the individuals composing the party who complains of a judgment, must join m a writ of error to reverse it. Brewer v. Turner, 1 Strange, 233; Cooper v. Ginger, 1 Strange, 606; Walter v. Stokoe, 1 Ld. Raym. 71; Andrews v. Bosworth, 3 Mass. R. 223; Shirley v. Lunenburgh, 11 Mass. R. 383. It is generally true, that error will not lie to reverse a judgment which might have been appealed from. Savage v. Gulliver, 4 Mass. R. 178; Champion v. Brooks, 9 Mass. R. 228. But persons who were not notified of the suit, or were incompetent to act, cannot, with any propriety, be said to have had an opportunity to appeal. And, therefore, they may maintain a writ of error. Skipwith v. Hill, 2 Mass. R. 35; Putnam v. Churchill, 4 Mass. R. 517; Vallier v. Hart, 11 Mass. R 300. And although one of the original defendants had notice of the action and might have appealed, yet his neglect cannot bind his co-defendants, who are now obliged to join him in a suit to reverse a judgment against them of which they had no notice. The service upon one of four defendants, was manifestly in sufficient. It might have warranted a judgment against the one upon whom service had been made ; but a joint judgment against all of them is clearly erroneous. Tappan v. Brewer, 5 Mass. R. 193; Call v. Hagger, 8 Mass. R. 423. The statutes of 1797, c. 50, § 6, and of 1828, c. 114, da not extend to justices of the peace. But if they did, they have not been complied with in this case. Arnold v. Tourtellot, 13 Pick. 172. • Judgment reversed. The plaintiffs in error claimed costs, under Revised Stat. c. 112, § 14, which provides that “the party prevailing on a wr"t of error in any civil action, shall, in all cases, be entitled [419] to his costs against the adverse party but the Court were of opinion, that as the writ of error was brought before the Revised Statutes went into operation, the case was excepted from that provision by virtue of Revised Stat. c. 146, § 5, limiting the effect of the repeal of the acts revised.