Germain v. Mason (79 U.S. 259)

by Samuel Freeman Miller

United States Supreme Court

79 U.S. 259

Germain  v.  Mason

MOTION by Mr. Nathaniel Wilson to dismiss a writ of error to the Supreme Court of Montana Territory; the case as it seemed, from a not very clear record, being thus:

J. Mason and L. B. Duke brought suit in the court below against Jules Germain to recover a balance due for work and materials furnished in building a house, and to enforce a mechanic's lien against the house and the lot on which it was built for the debt. One C. L. Dahler, A. J. Davis, and eighteen other persons, who the petition stated 'had or claimed to have some interest, claim, or lien on the incumbered premises,' were made defendants, but the petition alleged that their interest, claim, or lien, if any, had accrued subsequently to that of the plaintiffs; and it prayed 'for judgment against the said Jules Germain in the sum of $6651,' and that it be adjudged that the defendants, C. L. Dahler, A. J. Davis, and the eighteen others named, and all persons claiming under them subsequently to the commencement of the action, by barred and foreclosed of all right, claim, lien, &c., in, on, or to the incumbered premises, 'and that the premises be decreed to be sold,' &c. The court decided that the lien of the plaintiffs was paramount to that of all other persons, and gave judgment against Germain in personam for the debt, with an order that if it could not otherwise be made out of him, the real estate on which the lien was claimed should be sold, and out of the proceeds of the sale the debt of the plaintiffs should be first paid. To this judgment Germain alone sued out a writ of error. The writ purported to be taken—

'Because in the records and proceedings, as also in the rendition of the judgment of a plea between J. Mason and L. B. Duke, plaintiffs, and Jules Germain et al., defendants, a manifest error hath happened, to the great damage of the said Jules Germain, one of said defendants as aforesaid, as by his complaint appears.'

The bond recited that 'Jules Germain, one of the defendants in the above cause, had prosecuted a writ of error to the Supreme Court of the United States to reverse the judgment,' and the obligors undertook 'on the part of the appellant' that he would pay the costs, &c.

Mr. Wilson, in support of his motion, argued that as the writ of error described the defendant in the original suit as Jules Germain et al., the case fell within the ruling in Deneale v. Stump's Executors, ^[1] and similar subsequent cases, and that the writ should be dismissed.

Mr. M. Blair, contra: The money judgment is against Germain alone. He singly can appeal.

Mr. Justice MILLER delivered the opinion of the court.

Notes

1. 8 Peters, 526. 6 Wallace, 355. Mastersonv.Herndon, 10 Wallace, 416.