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I

IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT 

No. 74-3726

LOUIS SWINT,
Plaint if f- Appel lant,

WILLIE JOHNSON and CLYDE HUMPHREY,
Plaintiffs- [Status on this appeal unknown]

PULLMAN-STANDARD, a division of PU£ ™ N ' *^ ^ Ru^ E D DSTEELWORKERS
^ a” 5and S eRNATIONALCASSOCIATION OF MACHINISTS AND
aerospace w o r k e r s, afl-c i o,

Defendants-Appellees.

On Appeal From The United States For The Northern District of Southern Division

District
Alabama

Court

CERTIFICATE REQUIRED BY FIFTH CIRCUIT 
LOCAL RULE 13(a)

The
Standard, 
interest 
are made

undersigned, counsel of record 
certifies that the following

for movant, Pullman 
listed parties have an

in the outcome of this case, 
in order that Judges of this

These representations 
Court may evaluate



possible disqualification or recusal pursuant to Local Rule 
13(a) .

1. Pullman-Standard, a division of Pullman, 
Incorporated.

2. Louis Swint, an individual.
3. United Steelworkers of America, AFL-CIO.
4. Local 1466, United Steelworkers of America.
5. International Association of Machinists and 

Aerospace Workers, AFL-CIO.

ATTORNEY FOR PULLMAN-STANDARD



STATEMENT OF THE ISSUE PRESENTED 
BY PULLMAN STANDARD'S MOTION

Does the Notice of Appeal filed in this case constitute 
an appeal by any party other than Louis Swint in his individual 
capacity?

(iii)



ARGUMKNT

The only Notice of Appeal filed in thin cane rends an 
follows:

IN Tin: UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF AL/CftWA,N SI'CRK'S OfTICRNOKIHCRN OlSiniCl OF. AUOAMA'

SOUTHERN DIVISION SF.P 1 6 13M
VyitLIAM e./'AVIS, _•

RLRUir biriiK ~
CIV1E ACTION NUMBER 

71-99S

LOUJS SKINT, ct al., 
Plaintiffs,

vs.

PULLMAN-STANDARD, ot al.. 
Defendants.

NOTICE OF APPEAL

ri.EASK TAKE NOTICE that the plaintiff, Louis Swint, 

by liis undersigned attorney hereby appeals to the United States 

Court of Appeals For The Fifth Circuit the final order of the 

United States District Court for the Northern District of Alabama 

entered in the above action on the 13th day of September, 1974.

U. W. CLIJMON
ADAMS, IJAKKK L CI.KMON

Suite J GO 0 - 2121 Building 
212) Eighth Avenue, North 
Birmingham, Alabama 3 C>2 0 3

MARILYN HOLIFIFM)
10 Columbui; Circle
New York, New York 1001‘J

ATTORNEYS TOR PLAINTIFF

The Notice of Appeal, referrincj repeatedly to "plaint: 
in t.lie singular, is solely an appeal by Louie Swint in hin 
individual capacity. No Notice of Appeal has ever been fi 
purporting to be filed by "plaintiffs" or by any identifier 
party other -than Mr. Swint. No indication in contained in

- 1 - .

iff"

ed

the



filed Notice of Appeal that Mr. Swint acted or purported to 
be acting in any capacity other than his individual capacity 
No mention is made in Mr. Swint's Notice of Appeal of class 
representation, and there is no indication that other joint 
class representatives were party in any manner to his appeal 

The single bond for costs filed states:

IN THE UNITED STATES DISTRICT COURT
FILED IN CLERK’S OEflCE

FOR THE NORTHERN DISTRICT OF iWEnnAMAisTWCT Or. alaoamX'

SOUTHERN DIVISION Sr.P 11> W/4
LOUIS SWINT, ct al., 

Plaintiffs,
vs.

jPULIMAN-STANDARD, et al., 
Defendants.

WILLIAM C. EAVJS

DEPUDf CLERK *

CIVIL ACTION NUMBER 

71-955

BOND FOR COSTS OH APPEAL

We the undersigned jointly and severally acknowledge 
jthat we and our personal representatives are bound to pay to the 

jnamed defendants in the above action the sum of TWO HUNDRED AND 
FIFTY DOLLARS ($250.00).

The condition of this bond is that, whereas the plain­
tiff has appealed to the Court of Appeals for the Fifth Circuit 
by Notice of Appeal filed September 16, 1974, from the judgment 

of this Court entered September 13, 1974, that if the plaintiff 
shall pay all costs adjudicated against him if the appeal is 
dismissed or the judgment affirmed or such other costs as the 
appellate court may award if the judgment is modified, then this 

bond is to be void, but if the plaintiff fails to perform this 

condition, payment of the amount of this bond shall be due forth­
with. ^

Lopis-.swiii/T"
U. W. Ci.HHON

(jK 'up. p . prT v e t t

ADAMS, BAKER (. (’LEMON 
_  o  Su.i l  e 1000 “  2121 Bui  Id  in 

? ) ? ]  K i r j l i lh A v i ' i m r , No r t h  
|«i mi l  nqliuu, A I .ih.im.i

nq



The bond like the notice refers in the singular to "plaintiff": 
"the plaintiff has appealed"; "the plaintiff shall pay all costs 
adjudicated against him"; "if the plaintiff fails to perform."
The only plaintiff signing the bond is Louis Swint (Mr. demon 
and Ms. Privett are attorneys) .

Rule 3 (c) of the Federal Rules of Appellate Procedure re­
quires a notice of appeal to "specify the party or parties taking 
the appeal." The only reference in Mr. Swint's Notice of Appeal 
to more than one individual is in the caption where the phrase 
"et al." is used in connection with the word "plaintiffs." The 
phrase "et al." is nowhere used in connection with the word 
"appellants" or indeed is the word "appellants" itself ever used 
by Mr. Swint.

The caption of a notice of appeal cannot constitute the 
specification of the parties appealing required by Rule 3(c) 
because under the rules the caption remains identical regardless 
of how many parties appeal or in what capacity. Pursuant to 
Rule 3(a) of the Federal Rules of Appellate Procedure notices 
of appeal are, of course, filed in the district court. Rule 
10 (a) of the Federal Rules of Civil Procedure states that the 
caption of every pleading in the district court after the com­
plaint shall either include the names of all parties to the 
litigation in the district court or alternatively "state the name 
of the first party on each side with an appropriate indication 
of the other parties". Rule 7(b)(2) of those rules states that 
"[t)he rules applicable to captions... apply to all other motions 
and other papers." Thus a notice of appeal, filed in the district



court, being a paper provided for by the rules (e.g., Rule 62(d)), 
must according to the Federal Rules of Civil Procedure contain 
a caption either listing all parties in the lawsuit by name, or 
stating the name of the first party followed by some appropriate 
reference to the other parties plaintiff, which by immemorial 
custom has been done by use of the Latin abbreviation "et al." 
or its English equivalent "and others", although probably other 
terminology would be a sufficient compliance with the rules.
The form of the caption prescribed by the rules must indicate 
one way or the other the existence of all the plaintiffs and 
cannot constitute an indication as to who is appealing. The use 
of the words "et al." in the notice of appeal or some other 
appropriate indication that other parties plaintiff were present 
in the district court was required by the rules no matter how 
many parties appealed or in what capacity.

The practical application of Rule 3(a) of the Federal 
Rules of Appellate Procedure in connection with Rule 10(a) and 
Rule 7(b)(2) of Federal Rules of Civil Procedure is illustrated 
by Form 1, Appendix of Forms, Federal Rules of Appellate Pro­
cedure. Form 1, the official•form notice of appeal, is headed
"United States District Court for the _________  District of
__________ " not "United States Court of Appeals for the ________
Circuit." The form notice of appeal describes parties as 
"plaintiffs" and "defendants" not "plaintiffs-appellants" or 
"defendants-appellces", and specifies the appropriate district 
court file number. As indicated by the official form notice of 
appeal the caption is the regular district court caption no

4



matter who appeals; and when the appeal is docketed thereafter 
in the Court of Appeals, papers filed there have a new caption, 
beginning with the official name of the court, and the parties 
names, their capacities other than individual stated, and the 
proper nomenclature of their role in the case added in the 
manner indicated in FRAP Rule 12 (a).

In Parrish v. Bar Commissioners, 505 F. 2d 12, 15 (5th Cir. , 
Dec. 2, 1974) in a recently withdrawn opinion, this Court held 
that a notice of appeal containing in the caption the name of one 
plaintiff followed by the words "et al., Plaintiffs", and in 
the text the word "plaintiffs: in the plural, followed by 
the names of two individual plaintiffs, was sufficient to take 
an appeal by all plaintiffs. The opinion indicated that the issue 
should be judged by the standards fo notice pleadings; in other 
words, the Court said this ambiguity placed the appellees on 
notice that maybe all the plaintiffs were appealing the opinion.
We do not understand the basis for the now withdrawn opinion 
and the Court in Parrish acknowledged that decisions in other 
circuits are to the contrary. But whatever the basis for the 
Parrish decision, and even if that opinion had not. been withdrawn 
by the Court, it would not have supported a conclusion that any 
persons other than Louis Swint have appealed in the present case. 
The "ambiguity" present in Parrish arguably extended to the text 
of the notice itself (i.e., in its reference to "plaintiffs") 
not merely in the caption. The Court did recite that the caption 
referred to "et al., Plaintiffs", but this fact could not have

5



been the deciding Victor in Parrish since as explained above 
such a caption was required by the Rules. There is no similar 
ambiguity in Mr. Swint's Notice of Appeal and therefore no basis 
for applying the now withdrawn reasoning in Parrish to this case.

Parrish even prior to its withdrawal did not stand for the 
proposition that an appeal such as the present one is any more tha 
an appeal by one plaintiff, Mr. Swint, in his individual capacity. 
The authorities are numerous and in agreement that using the 
words"et al." following the name of one plaintiff in the caption 
of a notice of appeal, without more, is not sufficient to 
specify that any plaintiff other than one named in the text of 
the notice has taken an appeal. Similarly, the use of the words 
"et al." in a notice of appeal otherwise, taking an appeal in an 
individual capacity, does not take the appeal also in some other 
representative or official capacity.

The Sixth Circuit Court of Appeals in the relatively recent
case of Van Hoose v. FJidson, 450 F. 2d 746 (6th Cir. , 1971)
specifically considered just such an issue in a civil rights case
involving high school students:

The District Court denied relief and a notice 
of appeal was filed entitled: "Floyd Van Hoose,
et al, Plaintiffs-Appellants v. William P. Eidson, 
et al, Defendants-Appellees." Within the required

*■ FRAP Rule 12(a) in providing that "An appeal shall be docketed 
under the title given to the action in the district court with 
the appellant identified as such, but if such title does not 
contain the name of the appellant his name, identified as 
appellant, shall be added to the title" recognizes that the 
title of the case in the district court is nothing more than a 
title given to the case and would be the same there, regardless 
of who is an appellant, so that entitling the case could not be 
a means of specifying the appellants.

6



time a motion to dismiss the appeal was 
filed setting forth that the case as to 
Floyd Van Hoose is moot and that no appeal 
has been properly taken for any other party.

*  *  *

We are satisfied that the only appellant in 
this case is Floyd Van Moose. Rule 3(c),Rules of Appellate Procedure, requires in 
part: "The notice of appeal shall specify
the party or parties taking the appeal."
The only party specified in the notice of 
appeal filed in this case was Floyd Van Hoose.
The term "et al." does not inform any other party or any court as to which of the plaintiffs 
desire to appeal in this case. This is more 
than a c)erical error. Cook and Sons Equipment,
Inc. v. Killen, 277 F.2d 607 (9th Cir., 1960);
Penwe11 v. Newland, 180 F.2d 551 (9th Cir.,
1950); 9 Moore's Federal Practice (2nd Ed.
1970) Section 203.17.

Id. at 747. The present case is a stronger case for a conclusion 
that only one plaintiff has appealed than was Van Hoose. In 
Van Hoose the caption created some arguable ambiguity by using 
the phrase "Plaintiffs-Appellants [emphasis added]" an ambiguity 
not present in the caption of the current notice of appeal which 
merely follows the rules and refers only to "plaintiffs." 
Nevertheless, it was held in Van Hoose that the notice, failing 
to specify other parties, was insufficient under Rule 3 (c) to
bring other parties before the appellate court.

When appeals were allowed to the United States Supreme Court 
by writ of error the Supreme Court considered the issue many times. 
The question arose in the context of a Supreme Court rule then 
existing which required "all parties who [were] united in interest 
to unite in the appeal." Owings v. Kincannon, 33 U.S. (7 Pet.)
403 (1833). The Supreme Court repeatedly held that the use of

7



the words "et al." was not sufficient to constitute an appeal
by anyone, other than the specifically named persons. This
conclusion was reached, for example, in Davenport v. Fletcher,
58 U.S. (16 Mow.) 140 (1953) where Mr. Justice McLean writing
for the Court stated the facts as follows:

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.

Id. at 142. Similarly in Smith v. Clark, 54 U.S. (12 How.)
21 (1851) Chief Justice Taney found the following insufficient 
to constitute an appeal by any party other than the single 
named party:

The certificate of the clerk states, that, 
in the Circuit Court of Massachusetts, in a 
cause depending in that court, in which 
Francis 0. J. Smith was complainant in equity, 
and Joseph W. Clark and .others were respondents, 
a final decree in that court was made on the 
17th of October, 1850, in favor of the said 
Joseph W. Clark and others, respondents,, 
from which the said Francis O. J. Smith 
appealed on the same day; and on the 30th 
of October filed his appeal bond with sureties, 
whereby execution on the decree was suspended.
The certificate conforms to the rule in all 
respects but one, and that is in the statement 
of the parties. The respondents are stated to 
be Joseph W. Clark and others, from which, as 
well as from the statement in the motion, it 
appears that there were other respondent parties 
to the suit, who arc not named in the certificate.

8



Id. at 21. See Freeborn v. The Ship Protector, 82 U.S. (14 Wall.)
83 (1871) (recital of the phrase "The Ship Protectors and owners" 
was not sufficient to bring unnamed owners before the Court); 
Deneale v. Archer, 34 U.D. (8 Peters) 524 (1834) (Chief Justice 
Marshall dismissing appeal: "The present writ of error is brought
by Mary Deneale 'and others', as plaintiffs; but who the others 
are cannot be known to the court for their names are not given..."

I11 Miller v. McKenzie, 78 U.S. (10 Wall.) 582 (1871) the
Supreme Court stated:

A motion is now made on the part of the de­
fendants to dismiss the case for want of 
jurisdiction.
It appears, from an inspection of the record, 
that the writ of error is defective in respect 
to the parties. It is therein recited that 
the proceedings are between Pitzer Miller and 
Larkin McKenzie and others. This defect has 
been held so many times in this court as fatal 
to its jurisdiction that it need be but men­
tioned to require a dismissal of the case.

Id.
State court decisions while not controlling should be 

persuasive to this Court. Every state court decision on point 
which we have been able to locate supports the conclusion that 
the present appeal is solely an appeal by Louis Swint in his 
individual capacity.

The Court of Appeals of Georgia considered the identical 
issue now before this Court in Wells v. Chemical Dank, 308 Ga. App 
387, 133 S.E.2d 52 (1963) :

9



The record sent up with the bill of ex­
ceptions in this case discloses that Chemical 
Bank New York Trust Company brought suit 
against "Freddie Wells, individually and 
d/b/a Freddie Wells Beauty Supply, Freddie 
Wells Beauty Supply, Inc. and Wells and 
Bullard, Inc. and against Freddie Wells ••
Beauty Supply, Inc. and against Bullard 
Beauty Suppliers, Inc., defendants," 
alleging that the defendants were indebted 
in a named sum to the plaintiff.

*  * *

The bill of exceptions in this court to 
this decision of the trial judge is cap­
tioned, "Freddie Wells et al., Plaintiff 
in error v-. Chemical Bank New York Trust 
Company, Defendant in error." In the body 
of the bill of exceptions, it is recited 
that the defendant in error filed its 
petition against "Plaintiff in error" and 
refers to copies to two letters written by 
"Plaintiff in error".

* * *
There are other instances where the term,
"Plaintiff in error," is used in the bill 
of exceptions. No where in the bill of 
exceptions does the name of any of the ■ 
defendants in the court below appear except 
in the caption where the name of Freddie Wells 
appears with the abbreviation "et al."

The Georgia Court of Appeals concluded that the only appeal was
by Mr. Wells individually:

Properly construed, Freddie Wells is the. only 
party plaintiff in error to the bill of ex­
ceptions, the words, "et al.," being insufficient 
to designate any other person as the party plaintiff 
in error. Swift v. Thomas, 101 Ga. 89, 92, 28 S.E 
618; Orr v. Webb, 112 Ga. 806(2), 38 S.E. 98.

Id. Accord, Chandler v. Foote & Davies Co., 210 Ga. 370, 80 S.E.2d
292 (1951) ; Lanier v. Bailey, 206 Ga.. 161, 56 S.E.2d 515 (1949).

In Brown v. City of Palatka, 132 Fla. 260, 181 So. 529 (1938) 
the following notice of appeal was filed:

- 10



In the Circuit Court of the Seventh Judi­
cial Circuit of the State of Florida, in and for Putnam County 

In Chancery. #3395
City of Palatka, a municipal corporation,

Plaintiff, v. Ralph B. Wilson, as execu­
tor, etc. et al., Defendants.

Notice and Entry of Appeal
Come now the defendants, Irene Otto 

Brown and Robert T. Brown, her husband, 
and take and enter this their appeal to 
the Supreme Court of the State of Florida 
from the certain final decree entered in the 
above styled cause under date of November 6,
1936, and recorded in Chancery Order Book 16, 
page 217, said final decree being entered by 
the Honorable George William Jackson, judge 
of the said Court, and make their said appeal 
returnable to the. Supreme Court of Florida, 
at Tallahassee, Florida, on the 6th day of’
April, A.D. 1937, the same being more than 
thirty and less than ninety days from the date of this appeal.

This 15 day of January, A .D. 1937.
Walter F. Rogers 
William T. Rogers 
Eugene Williams

Attorneys for Defendants, Irene Otto 
Brown and Robert T. Brown, her hus­band.

The Florida Supreme Court found that the executor was not before 
the court:

Ralph B. Wilson, as executor of the estate 
of Asad E. Wilson, deceased, has not by any 
act or deed submitted himself to the juris­
diction hereof as disclosed by this record.
The notice of the appeal as recorded in the 
office of the Clerk of the Circuit Court of 
Putnam County fails to include the name of 
Ralph B. Wilson, executor of the estate of 
Asad E. Wilson, deceased, and because of the 
absence of a necessary party, this court is 
without authority at law to pass upon the le­gal merits of tax certificate number 420.
This Court had before it a similar question 
as the one involved in the case at bar in 
Lowe v. De Laney, 54 Fla. 480, text 481, 44 
Bo. 710, when this Court said (page 711):

- 11 -

f



"* * * The entry of appeal attempts to include 
other unknown parties as appellees by the use 
of the abbreviation "et al.'; buts as was held 
in the cases of State ex rel. Andreu v. Canfield,
40 Fla. 36, 23 So. 591, 42 L.R.A. 72, and Cornell 
v. Franklin, 40 Fla. 149, 23 So. 589, 74 Am. St.
Rep. 131, the use of such an abbreviation does not 
include anyone as a party to an appeal except such 
as are expressly and fully named in the appeal.* * *"
See also the case of Lessic v. Booske, 86 Fla. 251, 
text 252, 253, 97 So. 383, where it was said:
"* * * There is nothing in the record to indicate 
the identity of George Lessic et al. on behalf 
of Clarence Griggs Floyd, a minor, named in the 
purported entry of appeal as appellants, with 
George Messic, Clarence Griggs Floyd, a minor, 
and William Floyd, his guardian, ad litem, and 
Edith Messic, a minor, and Earl Hoffman, her guardian ad litem, respondents in the court below. 
Because of this variance the notice of appeal 
is defective and insufficient to give this 
court jurisdiction of the parties. Furthermore, 
if this error had not been made and the appeal 
should be regarded as having been made by George 
Messic, et al., appellants versus A. Booske, 
appellee, on the theory that Messic and Lessic 
are idem sonans, the abbreviation of 1et al.' 
is ineffectual as to the parties to whom it is 
intended to refer, and it appearing from the 
transcript of record sent to this court that 
such omitted parties are minors and are jointly 
interested in the subject-matter of the litigation 
with the party attempted to be named and are necessary 
parties appellant, and that they could not now 
be brought in as appellants because the time for 
taking an appeal has expired, the motion to dismiss 
will be granted. National Bank of Lancaster v. 
Newheart, 41 Fla. 470, 27 So. 297; State ex rel.
Andreu v. Canfield, 40 Fla. 36, 23 So. 591, 42 
L.R.A. 72; Cornell v. Franklin, 40 Fla. 149, 23 So. 
589, 74 Am. St. Rep. 131."

*  *  *

The abbreviation "et al." appearing in the notice 
of appeal is insufficient in this case to include 
the owners of the land described in the certificate 
number 420.

Id. So. at 530.

12



The Georgia and Florida decisions' are only a few ex­
amples of numerous state court decisions to the same effect.
See, e^g. Leicht v. Snow Hill Min. Corn.. 101 Ind. App. 584,
200 N.E. 427 (1936) (use of "et al. " after name of plaintiff 
in caption did not serve to bring any other than named plaintiff 
before appellate court); Brabham v, Custer County. 3 Neb. (Unof.) 
801, 92 N.W. 989, 990 (1902) (use of the words "et al." following 
the names of parties to a petition in error, was not sufficient 
to place other parties before the appellate court); Carroll v. 
Sartain, 164 S.W.2d 52, 54 (Tex. Civ. App. 1942) (motion for 
rehearing filed in appellate court in name of one movant with words 
"et al." after his name was motion only on behalf of named person); 
Perj^v^Bailey, 290 Ky 129, 160 S.W.2d 617 (1942 ) (where only 
one party to suit was named in statement of appeal, the term 
"et al." following such party's name did not have effect of pre­
senting appeal against other parties); Bard v. Board of Drainage.
274 Ky. 491, 118 S.W.2d 1013 (1938)(use of "et al." after name 
of appellant insufficient to designate other parties); Tandy v.
Wolfe, 270 Ky. 556, 110 S.W.2d 227 (1937) (name followed by "et al." 
m  appeal not sufficient to include wife). See generally, Coleman 
v. Wisbey, 225 P.2d 1067 Wash. (1950) (notice of appeal is judged 
by what it recites and not by what it is intended to recite);

216 Pa. 489, 65 A. 1085 (1907) (allegation 
in lien that paving was done on failure of K. "et al." to do 
same held insufficient); Higgins v. Shepard, 48 Tex. Civ. App. 
365.107 S.W. 79 (1908 ) (use of phrase "et uxor" meaning "and wife"



where statute required citation to give names of parties not 
sufficient to bring wife before court).

In 4 C.J.S., Appeal & Error §413 at 1365-66 the rule is 
stated in this manner:

It is frequently held that the words "etc." after 
the name of an appellant or.appellee does not 
make any but those mentioned parties to the 
appeal, and the designation "et. al." is in­
sufficient to bring in parties not mentioned.

Id.
It bears repeating again that in the particular notice 

of appeal involved in this case not even the word "appellants" 
is used. "Et al." follows merely the word "plaintiffs" as 
required by the rules for captioning all papers filed in the 
district court. The appeal by Mr. Swint alone in his individual 
capacity cannot constitute an appeal by any other plaintiff or 
by Mr. Swint in any other capacity.

In Cooke and Sons Equipment, Inc, v. Killen, 277 F.2d 607 
(9th Cir. 1960), a judgment was entered against two named in­
dividuals and a corporation and an appeal was taken in the 
name of the corporation alone. Thereafter, the individual 
defendants sought to have their names added to th'e notice of 
appeal. The court declined to allow the individual defendants 
to join in the appeal despite their assertion that the omission 
was but a clerical error. Judge Orr writing for the court stated

The omission here was much more than a clerical 
error. It was a failure of the individual de­
fendants to appeal. We have no authority to 
amend a notice of appeal so as to bring in 
additional parties. Appellant relies on 
Rule 75(h) of the Federal Rules of Civil

14



Procedure, 2 8 U.S.C.A. That rule has no 
application in the instant situation. It 
applies to errors in the contents of a record.
Rule 73 (b) requires that the notice of appeal 
specify the parties taking the appeal. Only 
the parties named in the notice of appeal are 
brought within the appellate court's juris­
diction. (Citations omitted) The harmless 
error doctrine has no application to failure 
to name parties in a notice of appeal.

Id. at 609. The rules before the court in Killen were the now
superseded Federal Rules of Civil Procedure regulating appeals.
The Advisory Committee's Note to Rule 3 of the Federal Rules of
Appellate Procedure attributes Rule 3(a) FRAP to Rule 73(a)
FRCP and said note further describes Rule 3(c) FRAP as being
"identical" with Rule 73(b) FRCP. See PenwejUj^^ 180
F.2d 551 (9th Cir. 1950) (appeal by person deceased individually
and in official capacity not sufficient as appeal by administrator)
Stone v. Interstate Natural Gas Co., 103 F.2d 544 (5th Cir. 1939)
(citing, Smietanka. Collector v. Indiana Steel Corp. 257 U.S. 1
(1921); judgment against commissioner in official capacity
no estopple to suit by commissioner in individual capacity).

Similarly, the Court of Appeals of Georgia in Cooger v .
Cooger, 117 Ga. App. 614, 161 S.E.2d 428 (1968) hbld that an
appeal by an administrator in his individual capacity did not
constitute an appeal in his capacity as administrator.

Where, pending an action the defendant died and the 
executor of his last will and testament was sub 
stituted as party defendant, as provided by Code 
§ 81A-125, the person named as executor is not 
individually a party to the action and he may not 
appeal from a judgment entered adversely to the 
executor. "[0]nly a party to the case can appeal 
from a judgment," McCoy v. Sasnett, 77 Ga. App.
819, 821, 49 S.E.2d 913, 915, or one who has

15



sought to become a party, as by way of inter­
vention under Code § 81A - 124, and has been 
denied the right to do so.

*  *  *

The notice of appeal cannot be amended to 
substitute a new party. Bivens v. Todd,
222 Ga. 84(2), 148 S.E.2d 424.
Consequently, where the only notice of appeal 
in these cases was entered in his individual 
capacity by the person named as executor of 
the will of the deceased defendant, no valid 
appeal pends before us and the appeals must 
be dismissed.

Id.
As examples of notices of appeal on behalf of a class or 

on behalf of both named individuals and a class we call the 
courts attention to exhibits "A", "B" and "C", attached notices 
filed by plaintiff's attorneys in other cases. A quick examin­
ation will reveal basic differences. Each exhibit states that 
it is "on behalf of" a "class." Where more than one party 
appellant is present in the exhibits each such additional 
party is specifically named. A comparison of the exhibits with 
Mr. Swint's Notice of Appeal clearly indicates that his appeal 
was intended in his individual capacity.

While this Court has liberally construed a variety of documents 
to constitute a sufficient notice of appeal [See, e.g. , cases cited 
at Cobb v. Lewis, 488 F.2d 41, 44-45 (1974)] it has at the same 
time eicknowledged that whatever the document constituting a 
notice of appeal that document must be in a form that "clearly 
evidences the party1s intent to appeal." Cobb, supra at 45.

~ 16



The appeal by Louis Swint is solely an appeal on his individual 
behalf and does not evidence any other party's intent to 
appeal or an intent by Mr. Swint to appeal in any other capacity 
than individually. It is an unambiguous document, and no 
prior case in this or any other circuit that we have been able 
to locate supports a conslusion that the notice of appeal in 
this case is any more than an appeal by Mr. Swint in his in­
dividual capacity.

In the motion which this brief supports a number of reasons 
were stated as to why we need the Court to instruct us at this 
point who is the appellant in this case. Subsequent to the 
filing of that motion we received Mr. Swint's brief which purports 
to be on behalf of three plaintiffs- appellants and speaks for 
the most part to class issues. Mr. Swint designates for the 
appendix many pages of testimony relating to a variety of issues 
other than his individual claim (from approximately 4000 pages) 
and 61 exhibits. It will take many unnecessary hours to read 
the entire transcript and designate hundreds more pages for the 
appendix and many more unnecessary’ days and weeks to prepare 
a brief, answering every point of Mr. Swint's brief, if only Mr. 
Swint alone is an appellant in this case. A ruling on the issues 
raised by the motion at this point will serve both the parties

•faand the court. *

* Pullman's motion is consistent with its position taken by 
letter objecting to additional extensions of time by Mr. Swint 
within which to file his brief (several extensions had already 
been granted). A favorable ruling on this motion will un­
doubtedly expedite this appeal.

17