Davenport v. Fletcher

1. Where the judgment is not properly described in the writ of error; .2. Where the bond is given to a person who is not a party to the judgment; 3. Where the citation issued, is ¡«sued to a person who is not a party; — the writ of error will be dismissed pn motion.

This case was brought up by writ of error from the Circuit Court of the United States for the Eastern District of Louisiana. It will be necessary to state only the judgment,' and such of the other subsequent proceedings as gave rise to the motion to dismiss, and the judgment of the court thereon. On the 23d of June, 1848, the Circuit Court pronounced a judgment which is thus recited in the writ of possession, which was issued on the 21st of July, 1848. Whereas' Felicite Fletcher, Maria Antonia Fletcher, Augustine Cuesta, Javiera Cuesta, and Felicite Cuesta y Fletcher, complainants, against Charles Davenport, Erasmus' A. Ellis, Margaret Davenport, wife of Peter McKittrick, John- Phellip Edgar Davenport, and Elizabeth Davenport, wife of Celestine Maxent, deceased, heirs of John Davenport, deceased, defendants, on the 23d day of June, A. D. 1848, by the judgment of the Circuit Court of the United States, for the fifth Circuit and District of Louisiana, &c. &c. &c. The petition for the writ of error was in the names of the above defendants, and alleged further, that since said final judgment the original plaintiffs in the petition named, had parted .with their interest in the said judgment to Charles McMicken, a citizen of the State' of Ohio, and he hath been subrogated to the rights of the plaintiffs in the case, as doth appear by the record in this cause. The petition then prayed that the “ original plaintiffs herein, as well also as the said Charles McMicken, may be made parties hereto and duly, cited,” &c. See. Sec. The writ of error began as follows: Because, in the record and proceedings, as also in the rendition of the judgment of a plea which is in the said Circuit Court, before you, or some of you, between F. Fletcher et al. and Charles Davenport et al., heirs of John Davenport, deceased, a manifest error hath happened to the great damage of the said Charles Davenport et al., heirs of John Davenport, deceased, as by their complaint appears, &c., &c., &c. Citations were issued to Felicite Cuesta y Fletcher, wife of Jose Desadario Harravo; to Augustine Cuesta; to Javiera Cuesta; to Maria Antonia Fletcher, otherwise called Maria Antonia Fletcher. Hipp; to Felicite Fletcher, otherwise called . Felicite Fletcher Hipp; and to Charles McMicken. The bond was given by a portion only of the plaintiffs in error, and exclusively to Charles McMicken.