Polk v. Covell

• Decision Date: 19 February 1895
• Citation: 62 N.W. 240,43 Neb. 884
• Parties: POLK v. COVELL ET AL.
• Court: Nebraska Supreme Court

43 Neb. 884

62 N.W. 240

POLK

v.COVELL ET AL.

Supreme Court of Nebraska.

Feb. 19, 1895.

Syllabus by the Court.

1. One of several defendants having separate and distinct defenses may prosecute an appeal from the county court to the district court without joining his codefendants.

2. When the interests of the several defendants are inseparably connected, an appeal by one defendant brings up the whole case.

3. But, in order to secure a review of a joint judgment by petition in error, all persons interested must be made parties to the proceeding as plaintiffs or defendants.

Error to district court, Douglas county; Keysor, Judge.

Action by George W. Covell, in the county court, against Milton D. Polk and John F. Polk. Judgment for plaintiff, and defendant John F. Polk appeals to the district court. From a judgment dismissing the appeal, John F. Polk brought error. Reversed.C. S. Polk, for plaintiff in error.

George W. Covell, for defendants in error.

POST, J.

This action originated in the county court of Douglas county, where the defendant in error Covell sued to recover the sum of $800 for services rendered as attorney for Milton D. Polk in an action lately pending in the circuit court of the United States for the district of Nebraska. John F. Polk was joined as a defendant, on an alleged original promise to be answerable for the value of the services so rendered at the request of his codefendant. The defendants therein filed separate answers, which do not call for notice in this connection, except that the material allegations of the petition were by each put in issue. A trial was had, resulting in a general finding and judgment for the plaintiff against both defendants. Subsequently, and within the time prescribed by law, John F. Polk, desiring to prosecute an appeal from said judgment to the district court for Douglas county, filed with the county judge the following undertaking, which was in due form approved:

“In the County Court, Douglas County, Nebraska. George W. Covell vs. Milton D. Polk and John F. Polk. Whereas, on the 18 day of June, 1892, George W. Covell recovered a judgment against Milton D. Polk and John F. Polk in said court for the sum of $800 and costs of said suit, taxed at $16.40, and the said defendant John F. Polk intends to appeal said cause to the district court of Douglas county: Now, therefore, I do promise and undertake to the said George W. Covell, in the sum of $1,640.00, that the said John F. Polk shall prosecute his appeal to effect, and without unnecessary delay, and that said appellant, if judgment be adjudged against him on the appeal, will satisfy such judgment and costs. John F. Polk. Wm. A. Gray.

Executed in my presence, and surety approved by me, this 27th day of June, 1892. J. W. Eller, County Judge.”

A transcript was in due time filed in the district court, whereupon the plaintiff therein, Covell, moved to dismiss the appeal, assigning as grounds for such motion: “(1) This court has no jurisdiction of the subject-matter. (2) That all parties interested in the judgment sought to be appealed from, as shown by the record, have not appealed from the judgment, and therefore have not been brought into this court. (3) The record shows a joint judgment against Milton D. Polk and John F. Polk for $800, yet John F. Polk only appeals, and Milton D. Polk does not appeal, and is not made a party appellant in this court.” The foregoing motion was, according to the transcript, sustained, to which order the said John F. Polk in due form excepted, and from which he has prosecuted this proceeding in error.

It will be noticed from the foregoing statement that the only question presented by the record is whether there was in the district court a defect of parties; or, in other words, was Milton D. Polk a necessary party to the appeal? It has been settled by repeated decisions of this court that all of several defendants jointly bound by a judgment or decree are necessary parties to a petition in order to secure a review thereof by proceedings in error, and may be made plaintiffs or defendants in conformity with the provisions of the Code in civil actions. See Wolf v. Murphy, 21 Neb. 472, 32 N. W. 303;Hendrickson v. Sullivan, 28 Neb. 790, 44 N. W. 1135;Curtin v. Atkinson, 36 Neb. 110, 54 N. W. 131;Consaul v. Sheldon, 35 Neb. 247, 52 N. W. 1104;Andres v. Kridler (Neb.) 60 N. W. 1014. But a distinction has long been recognized in this state between proceedings by petition in error and by appeal. For instance, in McHugh v. Smiley, 17 Neb. 626, 24 N. W. 277, it is said: “The rule as to appeals appears to be this: that when the action is against several defendants, who have distinct and separate defenses, the judgment as to one defendant in a proper case may be appealed, in which case it will only be necessary to take up so much of the record as pertains to his case. Where, however, the interests of the parties are inseparably connected, an appeal will take up the whole case.” See, also, Lepin v. Paine, 18...