Richards

(after stating the facts as above).

*403 The defendant in error moves to dismiss the writ of error on the ground that the judgment sought to be reviewed is a joint judgment against two copartners, and that the plaintiff in error alone, and without obtaining or petitioning for a severance or giving any notice to his co-defendant, sued out the writ of error. In Masterson v. Herndon, 10 Wall. 416 , 19 L.Ed. 953 , the court, through Mr. Justice Miller, said: “We do not attach importance to the technical mode of proceeding called summons and severance. We should have held this appeal good if it had appeared in any way by the record that Maverick had been notified in writing to appear, and that he had failed to appear, or, if appearing, had refused to join.”

And the learned justice, referring to the rule that without summons and severance an appeal must be dismissed, declared the reason therefor to be that with such summons and severance the court below would be enabled to execute its decree so far as it could be executed on the party who refused to join in the appeal, and that party would be es-topped from bringing another appeal for the same matter, and said: “The latter point is…