# The Protector (78 U.S. 82)

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United States Supreme Court
78 U.S. 82
The Protector
ON motion to dismiss an appeal; the case being this:
By the 22d section of the Judiciary Act it is enacted that decrees in civil actions may be brought here by writ of error. By the 32d section of the act it is enacted:
'That no summons, writ, declaration, return, process, judgment, or other proceeding in civil causes in any of the courts of the United States, shall be abated, arrested, quashed, or reversed, for any defect or want of form, but the said courts respectively shall proceed and give judgment according as the right of the cause and matter in law shall appear unto them, without regarding any imperfections, defects, or want of form in such writ, declaration, or other pleadings, return, process, judgment, or course of proceeding whatsoever, except those only in cases of demurrer which the party demurring shall specially set down. . . . And the said courts respectively shall and may . . . from time to time amend all and every such imperfection, defect, and want of form, except, &c., and may at any time permit either of the parties to amend any defect in the process or pleadings, upon such conditions as the said courts respectively shall in their discretion and by their rules prescribe.'
An act of March 3, 1803, enacts that decrees in admiralty must, if brought here, be brought by appeal, and enacts:
'Such appeals shall be subject to the same rules, regulations, and restrictions, as are presented in law in cases of writs of error, and that the said Supreme Court shall be and hereby is authorized and required to receive, hear, and determine such appeals.'
In this state of statutory law William A. Freeborn, James F. Freeborn, and Henry P. Gardner, of the city of New York, merchants, filed a libel in the District Court for the Southern District of Alabama against the ship Protector. That court dismissed the libel 'at the costs of the libellants, and ordered execution therefor to issue against the libellants.' This decree was confirmed by the Circuit Court. An appeal was then taken to this court. The petition for appeal was entitled William A. Freeborn & Co., and prayed for an appeal in the name of William A. Freeborn & Co. The allowance of the appeal was in the same name and style. The bond recited the appeal in the name of William A. Freeborn & Company. The citation also directed the party to appear in the cause wherein William A. Freeborn & Company were appellants.
Who constituted the Co. or Company, nowhere appeared in the proceedings on appeal.
Mr. Phillips, for the appellees, now moved to dismiss the case for want of jurisdiction.
In support of his motion: There is no doubt that if this were a writ of error, the writ would have to be dismissed as vicious. Is the rule different when applied to appeals? When a decree is joint against several all must appeal, without there is a summons and severance, and, as a consequence of this, whether the cause is to be removed by writ of error or appeal, all the parties must be named in the process by which the removal is effected. By searching the record in the case we could doubtless gather the fact, that the three named libellants did compose the firm of William A. Freeborn & Co., and a like result might have been obtained in all the cases in which the court has dimissed writs of error.
Mr. Blount, contra, opposed the motion, and moved on his side:
1st. To amend the proceedings on appeal by the libel in the cause; and 2d, to amend the libel so as that a decree might be rendered for interest and damages above the demand.
1st. It has been frequently decided that on an appeal to the Supreme Court in an admiralty cause, the cause is before that court as if in the inferior court. The libel here setting forth the names of all the parties who compose the firm of William A. Freeborn & Co., the whole record and proceedings being before this court, and the trial being de novo, the case is one for amendment under the thirty-second section-a section most remedial in its intent and broad in its language. It is the settled practice in admiralty proceedings where merits appear upon the record, but the libel is defective to allow the party to assert his rights in a new allegation.
2d. In Weaver v. Thompson, an appellee in admiralty was allowed to amend his libel in the appellate court so as to make a claim there for damages above costs, caused by a vexatious appeal.
The court having taken the matter into advisement, GRANTED THE MOTION TO DISMISS; an opinion, as given further on, being read from the bench, and holding that there was no difference in respect of the manner in which the names of the parties should be set forth between writs of error and appeals.
Mr. Carlisle hereupon submitted a motion for reargument, with a brief, thus:
1. In granting the motion to dismiss, it has been assumed that the same rule is applicable as in cases of writs of error. But it is respectfully submitted that this is not so.
The act of 1803 provides, 'That such appeals shall be subject to the same rules, regulations, and restrictions as are prescribed in law in case of writs of error, and that the said Supreme Court shall be, and hereby is, authorized and required to receive, hear, and determine such appeals.'
Now it would render the act nugatory if there were to be no difference, after its passage, between writs of error and appeals. The very object of the act was to recognize and establish these as two distinct modes by which the appellate jurisdiction might be acquired; and the inherent distinctions between the one proceeding and the other were to be observed, notwithstanding the general language above quoted, which general language was intended to apply only as to the substantial conditions on which the right to appeal should attach. The appeal must be always prayed and allowed in the court below or by a justice of the Supreme Court; and in either case these proceedings form part of the record in the court below, and are not, as in cases of writs of error, process out of this court. Copies only come here with the transcript, and this court is required to receive them only as parts of that transcript, and as 'proceedings in that cause.'
It would seem, therefore, that the reason of the rule, in cases of writs of error (viz., that it is an original writ and a new suit) does not apply. The whole record-appeal, allowance, and all-comes together as the same old suit; and it would be strange indeed if the appellate court, which is required to receive, hear, and determine the suit, should have any difficulty in ascertaining who are appellants and who appellees.
In the case of a writ of error there is nothing to amend by. In the case of an appeal there is everything. Here is simply an abbreviated description, not repugnant to the record, but plainly pointing to it, and is made certain by being filed in the cause below, and being sent up as part of the proceedings in that cause.
2. The order dismissing this appeal proceeds on the ground that the defect is a jurisdictional one. But it is submitted that a distinction is to be observed between jurisdiction of the subject-matter shown by the record [the case] and jurisdiction of the parties. No consent, stipulation, or waiver can confer jurisdiction of the first kind; nor can it confer jurisdiction of the parties, unless it appears that the court may take jurisdiction between such parties. But it is submitted that all mere informalities and irregularities may be cured by the voluntary appearance of parties of whom the court may take jurisdiction in a proper case. If it were otherwise, then it is hazarding nothing to say that an examination of the records of this court would show hundreds of decrees and judgments, in most important causes, to have been and to be mere nullities for want of jurisdiction. To avoid the waiver of such an objection to the jurisdiction, it is the common practice and understanding of the bar that the appearance must be expressed and limited to be 'special;' and, to avoid questions of fact in this respect, not many terms ago, the clerk, by direction of the court, caused the precipe to be used in such cases to be printed, using the word 'special.'
The opinion originally read, and which had been retained until the motion to reargue was disposed of, was now delivered to be reported.

## Notes

* ↑ Deneale v. Stump, 8 Peters, 526; Smith v. Clark, 12 Howard, 21.
* ↑ Owings v. Kincannon, 7 Peters, 403.
* ↑ The Adeline, 9 Cranch, 244.
* ↑ 1 Wallace, Jr., 343.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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