(dissenting).
By the Act of March 3, 1803, R. S. § 1012, appeals to the Supreme Court were made subject to the same rules, regulations, and restrictions as are or may be prescribed for writs of error. The uniformity fixed by the aet .of 1803 was held to extend to the common-law -rules as to joinder of parties. Owings v. Kincannon, 7 Pet. 399, 8 L. Ed. 727; Clifton v. Sheldon, 23 How. 481, 16 L. Ed. 429; Masterson v. Herndon, 10 Wall. 416, 19 L. Ed. 953; The Protector, 11 Wall. 82, 20 L. Ed. 47. A like provision appears in 28 USCA § 880, as applying to all appeals from the District Court and in section 2 of the Aet of January 31, 1928 (28 USCA § 861 (b). No doubt an appeal in admiralty to the Circuit Court of Appeals falls under the common-law rules for writs of error under these later statutes. Accordingly Hartford Accident Co. v. Bunn, 285 U. S. 169, 52 S. Ct. 354, 76 L. Ed. 685, is controlling authority in the ease at bar. That ease settles that United States Fidelity & Guaranty Company cannot be made a co-appellant now, after the time for appeal has expired, if it should have joined in the appeal originally. It does not hold that the surety on a bond to pay the final *665judgment is always a necessary party to an appeal from a judgment which, would have been final but for the appeal. The weight of authority is to the contrary. Ex parte Sawyer, 21 Wall. 236, 22 L. Ed. 617; Evans v. Cheyenne Co., 20 Wyo. 188, 122 P. 588, Ann. Cas. 1914D, 1116 and note; Thomas v. Price, 88 Ga. 533, 15 S. E. 11; Halliday v. Wright, 43 Ela. 46, 29 So. 534; The Glide (C. C. A.) 72 F. 200; The New York (C. C. A.) 104 F. 561. But it does hold, following Estis v. Trabue, 128 U. S. 225, 9 S. Ct. 58, 32 L. Ed. 437, that, if the judgment appealed from is on its face a joint one against the surety, he must join, and the co-urt will not look beyond the face of the judgment to see what sort of a surety he really was. To me this decree seems on its face evidently not joint, but that the only effective parts of it are against Elliot alone, the respondent below. There are three distinct judgments in separate paragraphs. Tho first is: “Ordered, adjudged and decreed that the libellant do have and recover of the respondent” certain sums. This is the decree in the original cause. The surety, United States Fidelity & Guaranty Company, is not mentioned in it. The second is: “It is further ordered, adjudged and decreed that unless this deeree be satisfied or an appeal taken within ten days after service of a notice of entry upon the respondent or his proctor, execution issue against Hans Elliott, respondent, and United States Fidelity & Guaranty Company, his stipulators * * to satisfy this decree.” This is the summary judgment on tho stipulation which by the provision of 28 USCA § 754, “may be recovered at the time of rendering the decree in the original cause.” It is not the same thing as the deeree in the original cause, though often included in it, hut is an additional judgment on the stipulation, gotten against the parties to it without additional proceedings therefor. The third judgment is: “Ordered, adjudged and decreed that tho cross-hill be dismissed.” United States Fidelity & Guaranty Company is a party to the second of those judgments only, and that judgment is hut provisional. For it to be made operative there must he proof of service of a notice on the respondent or his proctors of the rendition of the first judgment and proof of the lapse of ten days thereafter without payment or appeal, consideration of which would perhaps require further judicial action. But in fact there was an appeal within ten days, so that by its own terms this judgment never became operative. There was’ nothing for the United States Fidelity & Guaranty Company to appeal from. It was not, however, discharged from its stipulation, for, if its condition be looked to, it shows an obligation to “pay the money awarded by the final decree rendered by tho court or the appellate court if any appeal intervenes.” A summary judgment can he entered on the stipulation so soon as a truly final deeree in tho cause is had, although rendered on a mandate from this court. A joint decree might have been made on the trial below, but it was not.
This case is not distinguishable from Ex parte Sawyer, 21 Wall. 236, 22 L. Ed. 617. The stipulation there involved was one for an appeal from the District Court to the Circuit Court under R. S. § 1000 (28 USCA § 869). Summary judgment can he entered thereon just as on a stipulation under 28 USCA § 754; Pease v. Rathbun-Jones Co., 243 U. S. 273, 278, 37 S. Ct. 283, 61 L. Ed. 715, Ann. Cas. 1918C, 1147. A deeree was rendered by tho Circuit Court much like the one here, that is, first, a judgment in the cause against the respondent alone, and, second, “it is further ordered, adjudged and decreed that unless an appeal be taken from this deeree within the time allowed by law” judgment he entered against respondent and his surety, with execution. An appeal was taken by the respondent alone. The decree was not considered to be a joint one. The court says: “No decree was entered against them (the sureties) before tho appeal. The order was that a judgment be taken if an appeal was not taken. The appeal was taken and therefore the order never became operative. * * * Here the decree was absolute against the principal respondents alone. The order against the sureties was provisional only. They could not appeal from it because it was not final.” In the deeree before us the order for a joint execution implies a joint judgment for it to issue on, but the implied judgment and the execution are subject to the condition that payment or appeal of the principal judgment does not occur within ten days. In Estis v. Trabue, 128 U. S. 225, 9 S. Ct. 58, 59, 32 L. Ed. 437, in holding the judgment there involved to be joint, it was said: “There is nothing distributive in the judgment, so that it can be regarded as containing a separate judgment against the claimants and another separate judgment against the sureties, or as containing a judgment against the sureties payable and enforceable only on a failure to recover the amount from the claimants.” In the present ease we have a separate judgment against Elliot, and the judgment against United States Fidelity & Guaranty Company is enforceable only after failure for ten days after notice to get the money from Elliot. I *666think we ought to review the first and third judgments in the deeree and ignore the second as not of force by its own terms.