November 2, 1885
MOSES AND OTHERS
The suit below was in equity and brought by George H. Wooster, the appellee, against Solomon Moses, Gotcho Blum, and Solomon Weil, partners under the name of Moses, Blum & Weil, for an infringement of letters patent. A final decree for an injunction and damages was rendered against the defendants, May 23, 1883. From this decree all the defendants appealed, and the appeal was docketed here October 12, 1883. Blum died January 2, 1884. On the eleventh of April, 1885, Wooster appeared in this court and suggested his death; whereupon the usual order under rule 15, § 1, was entered, that unless his representatives should become parties within the first 10 days of this term, the appeal would be dismissed. Proof of the due publication of a copy of this order has been made, but the representatives of the deceased appellant have not appeared. The surviving appellants now move that the action abate as to the decedent, but that it proceed at their suit as survivors.
The opinion of the court was delivered by: Waite, C. J.
W. F. Mattingly, for appellants.
J. E. Hyndon Hyde, for appellee.
[Argument of Counsel from pages 285-287 intentionally omitted]
The judiciary act of 1789, (1 St. 90, c. 20, § 31,) provided that 'if there be two or more plaintiffs or defendants, and one or more of them shall die, if the cause of action shall survive to the surviving plaintiff or plaintiffs, or against the surviving defendant or defendants, the writ or action shall not be thereby abated, but such death being suggested upon the record, the action shall proceed at the suit of the surviving plaintiff or plaintiffs against the surviving defendant or defendants.' This was reenacted in the Revised Statutes as section 956, and is substantially a copy of the act of 8 and 9 Wm. III., c. 11, § 7, which it was held in Clarke v. Rippon, 1 Barn. & Ald. 587, was applicable to writs of error. Lord ELLENBOROUGH, in giving that judgment, said: 'The proceeding is an action which is commenced by a writ, and the cause of action is the damage sustained by the parties from the error in the previous judgment, and this damage equally attaches on the survivor in this as in any other action.' This court gave the same effect to our statute in McKinney v. Carroll, 12 Pet. 66.
Appeals to this court from the circuit and district courts are 'subject to the same rules, regulations, and restrictions as are or may be prescribed by law in cases of writs of error.' Rev. St. § 1012. The cause of action in this appeal, that is to say, 'the damage sustained by the parties in the previous decree,' attaches to the surviving appellants. All the defendants were enjoined from infringing the patented machine, and all were made liable for the payment of the damages which the patentee had sustained by their joint acts as partners. Clearly, therefore, the case is within the statute, and may be proceeded with accordingly. The cause of action is one that survives to the surviving appellants. Undoubtedly cases may arise in which the presence of the representatives of a deceased appellant will be required for the prosecution of an appeal, notwithstanding the survivorship of others. If that should be so, the court can, with propriety, direct that the appeal be dismissed, unless it be properly revived within a limited time. The house of lords made such an order in Blake v. Bugle, a note of which is found in Macqueen's Pr. H. L. 224. Here, however, there is no need of a revivor that substantial justice may be done. The decree below was against all the defendants jointly, upon a joint cause of action. It affected all alike, and the interest of the decedent is in no way separate or distinct from the others. If the representatives of a deceased appellant voluntarily come in and ask to be made parties, they may be admitted. Such a course was adopted by the house of lords in Thorpe v. Mattingley, 1 Phil. 200. In the present case the representatives of the decedent, although notified, do not appear. It is proper, therefore, that the appeal should proceed under the statute at the suit of the survivors, and an entry to that effect may be made.
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