Love, Savage & Co. v. McComas & Cloon

Buchanan, J. The facts and dates are recapitulated in the opinion heretofore delivered in this cause. A re-hearing having been granted, we have come to the conclusion that the plea of res judicata, interposed.by the appellant in this court, was well taken. ' [202] The judgment of the District Court, rendered on the 15th and signed on the 20th December, 1853, decreed, “that the second writ of attachment issued herein, and under which the steamboat Lewis Whiteman has been seized, which writ issued on the 29th May, 1852, be quashed and set aside, and that the bond given for the release of the property attached under said writ be cancelled and annulled.” This was a judgment in favor of the appellant, who was the surety upon the bond which was thus cancelled and annulled. This judgment became final and irrevocable by the lapse of two years from its date, without an appeal taken therefrom. Indeed it has never been appealed from to this day. The appellant was not a party to the subsequent proceedings in the suit of Love, Savage & Co. v. McComas & Cloon ; to the final judgment of the District Court on the merits in that case, rendered on the 7th February, 1856; to the appeal taken by plaintiffs from that judgment; and consequently not a party to the proceedings in the Supreme Court upon such appeal. As to this appellant, the judgment of this court of the June term of 1856, upon which the appellees rely, must be considered as res inter alias acta. The omission of appellant to make a party who is interested in maintaining a judgment, party to the appeal, might have been the means of dismissing the appeal, if brought to the attention of the court, previous to judgment on the merits. But the neglect of the appellee to do so cannot have the effect of enabling the appellant to profit by his own omission, and to enforce a judgment of reversal against one who was not party to such judgment of reversal. It is, therefore, adjudged and decreed, that our former judgment in this case, of the 23d November, 1857, be avoided and annulled, and that there be judgment reversing that which is appealed from, and in favor of the appellant, Bennett P. Voorhies, and against the appellees, Love, Savage & Co., with costs in both courts. Vooehies, J., recused himself, on account of relationship to one of the parties.