Opinion of the Court.

"SECTION 155. Plaintiff to be impleaded with sheriff in action against him. If, in such case, the person claiming the ownership of such property commences an action against the sheriff for the taking thereof, the obligors in the bond provided for in the preceding section, and the plaintiff in such execution, attachment, or other process, shall, on motion of such sheriff, be impleaded with him in such action. When, in such case, a judgment is rendered against the sheriff and his codefendants, an execution shall be immediately issued thereon, and the property of such codefendants shall be first exhausted before that of the sheriff is sold to satisfy such execution."

The record does not state in direct terms which of the forms of proceeding provided for in these sections was adopted. The intervenors claim they went into the suit under § 154 and 155, and the plaintiffs that it was under § 131. In the view we take of the case this question is quite immaterial. The intervenors, in their answer, state in positive terms that Larson in all that he did acted under the express direction of the Thorn Wire Hedge Company and upon the idemnity furnished him for that purpose, and that they are the parties primarily liable for his acts and doings. In their petition for removal they are even more explicit, and say that he "was at all such times, and in all such matters, so far as said plaintiffs are concerned, the mere agent for the petitioners provided for them by law." In other words, they have by their pleadings placed themselves on record as joint actors with the sheriff in all that he has done, and as promoters of his trespass, if it be one. The suit, therefore, stood at the time of the removal precisely as it would if it had been begun originally against all the defendants upon an allegation of a joint trespass. By coming into the suit the intervenors did not deprive the plaintiffs of their right of action against the sheriff. He is still, so far as they are concerned, a necessary party to the suit. The intervenors may unite with him to resist the claim of the plaintiffs, but by their doing so the nature of the action is in no way changed. The cause of action is still the original alleged trespass. At first the suit was against him who actually com

Syllabus.

mitted the trespass alone; now it is against him and his aiders and abettors, who concede, upon the face of the record, that they are liable if he is. As the case stood, therefore, when it was removed, it was by citizens of Minnesota against another citizen of Minnesota and citizens of Illinois, for an alleged trespass committed by all the defendants acting together and in concert. If one is liable, all are liable. The judgment, if in favor of the plaintiffs, will be a joint judgment against all the defendants.

That such a suit is not removable was decided in Pirie v. Tvedt, 115 U. S. 41, and Sloane v. Anderson, 117 U. S. 275. The fact that if the intervention was had under § 154 and 155, the property of the intervenors must first be exhausted on execution before that of the sheriff is sold, does not alter the case. The liability of all the defendants upon the cause of action is still joint, so far as the plaintiffs are concerned. By getting the intervenors in, the sheriff will be able to establish his right of indemnity from them, but that does not in any way change the rights of the plaintiffs. The intervenors do not seek to relieve themselves from liability to the sheriff if he is bound, but to show that neither he nor they are liable to the plaintiffs.

It follows that the order to remand was properly made, and it is, consequently,

RUNKLE v. UNITED STATES.

Affirmed.

UNITED STATES v. RUNKLE.

APPEALS FROM THE COURT OF CLAIMS.

Argued April 22, 1887. Decided May 27, 1887.

Article 65 of the Articles of War in the act of April 10, 1806, 2 Stat. 359, 367, "for the government of the armies of the United States," enacted that "neither shall any sentence of a general court-martial, in time of peace, extending to the loss of life, or the dismission of a commissioned officer, or which shall, either in time of peace or war, respect a general officer, be carried into execution until after the whole proceedings shall have

Statement of the Case.

been transmitted to the Secretary of War to be laid before the President of the United States, for his confirmation or disapproval, and orders in the case."

Held:

(1) That the action required of the President by this article is judicial in its character, and in this respect differs from the administrative action considered in Wilcox v. Jackson, 13 Pet. 498; United States v. Eliason, 16 Pet. 291; Confiscation Cases, 20 Wall. 92; United States v. Farden, 99 U. S. 10; Wolsey v. Chapman, 101 U. S. 755. (2) That (without deciding what the precise form of an order of the President approving the proceedings and sentence of a court martial should be, or that his own signature should be affixed thereto) his approval must be authenticated in a way to show, otherwise than argumentatively, that it is the result of his own judgment and not a mere departmental order which may or may not have attracted his attention, and that the fact that the order was his own must not be left to inference only.

(3) That until the President acted in the manner required by the article, a sentence by a court-martial of dismissal of a commissioned officer from service in time of peace was inoperative.

There being no sufficient evidence that the action of the court-martial which dismissed Major Runkle from the service was approved by the President, it follows that he was never legally cashiered or dismissed from the army.

THIS record showed that on the 14th of September, 1882, Benjamin P. Runkle filed in the office of the Second Auditor of the Treasury Department a claim, based on the decision of this court in United States v. Tyler, 105 U. S. 244, for longevity pay as an officer in the army of the United States, "retired from active service," and that on the 27th of June, 1883, the Secretary of the Treasury referred it to the Court of Claims, under § 2 of the act of March 3, 1883, c. 116, 22 Stat. 485, for an opinion upon the following questions:

"1st. Was the court-martial that tried Benjamin P. Runkle duly and regularly organized, and had it jurisdiction of the person of said Runkle, and of the charges upon which he was tried?

"2d. Were the proceedings and findings of said court-martial regular and the sentence duly approved in part by the President of the United States, as required by law?

"3d. Was Benjamin P. Runkle legally cashiered and dismissed from the army of the United States, in pursuance of said court-martial and subsequent proceedings?

Statement of the Case.

"4th. Was the President of the United States authorized and empowered by executive order to restore said Runkle to the army, as it is claimed he was restored by the order of August 4, 1877?

"5th. Is Benjamin P. Runkle now a retired army officer, with the rank of major, and, as such officer, entitled to longevity pay under what is known as the Tyler decision?"

Runkle thereupon filed his petition in the Court of Claims, in accordance with the rules of practice in that court applicable to such cases, and the United States put in a counter claim for "$23,585.62, moneys paid to the said claimant by the Paymaster-General and his subordinates, without authority of law, being the pay and allowances of a major in the army upon the retired list, from the 4th day of August, 1877, to January 1, 1884, during which period the said claimant was not a major in the army, nor in any way authorized to draw pay and allowances as aforesaid."

The facts as found by the Court of Claims were as follows:

I. April 22, 1861, the claimant was mustered in as a captain of 13th Ohio Volunteer Infantry, and served as such till November 8, 1861, when he was mustered in as major. August 18, 1862, he was honorably mustered out.

August 19, 1862, he was mustered in as colonel of 45th Ohio Volunteer Infantry, and honorably mustered out July 21, 1864.

August 29, 1864, he accepted appointment as lieutenantcolonel of Veteran Reserve Corps, and was honorably mustered out October 5, 1866.

October 6, 1866, he accepted appointment as major of 45th U. S. Infantry, became unassigned, March 15, 1869, and was placed on the retired list as major U. S. Army, December 15, 1870.

II. At the time he was so placed on the retired list he was on duty as a disbursing officer of the Bureau of Refugees, Freedmen, and Abandoned Lands for the state of Kentucky, and had been on that duty from April 11, 1867; and con

VOL. CXXII-35

Statement of the Case.

tinued on it without any new assignment to it, until he was arrested for trial before a court-martial, as hereinafter shown.

III. June 25, 1872, the following Special Order, No. 146, was issued by the War Department :

"1. By direction of the President, a general court-martial is hereby appointed to meet at Louisville, Kentucky, on the 5th day of July, 1872, or as soon thereafter as practicable, for the trial of 2d Lieutenant John L. Graham, 13th Infantry, and such other prisoners as may be brought before it."

Before the court-martial convened and organized under this order, the said Runkle was arraigned and tried on the following charges:

Charge I."Violation of the act of Congress approved March 2, 1863, c. 67, § 1."

Charge II.

man."

"Conduct unbecoming an officer and a gentle

The specifications presented under these charges were all based on acts alleged to have been done by the claimant while on duty as a disbursing officer of the Bureau of Refugees, Freedmen, and Abandoned Lands. There were thirteen specifications under the first charge, and fourteen under the second. All the specifications averred acts done by him in the year 1871, except the 1st and 5th under Charge I, and the 1st, 5th, and 14th under Charge II, all of which averred acts done in 1870, before he was placed on the retired list. Of the 1st and 5th specifications under Charge I, and of the 14th under Charge II, he was found guilty. He was also found guilty of ten other specifications under Charge I, and of five other specifications under Charge II, all of which averred acts done by him in 1871. He was also found guilty of both charges; and was sentenced by the court to be cashiered; to pay the United States a fine of $7500; and to be confined in such penitentiary as the President of the United States might direct, for the period of four years; and in the event of the non-payment of the fine at the expiration of four years, that he should be kept in confinement in the penitentiary until the fine be paid; the total term of imprisonment, however, not to exceed eight years.