Richardson v. N.N. & T.J. Powell

• Decision Date: 08 February 1917
• Docket Number: 1 Div. 880
• Citation: 74 So. 364,199 Ala. 275
• Court: Alabama Supreme Court
• Parties: RICHARDSON et al. v. N.N. & T.J. POWELL.

74 So. 364

199 Ala. 275

RICHARDSON et al. v. N.N. & T.J. POWELL.

1 Div. 880

Supreme Court of Alabama

February 8, 1917

Appeal from Chancery Court, Washington County; Thomas H. Smith Chancellor.

Bill for partition by N.N. & T.J. Powell against A.G. Richardson and others. Decree for complainants, and respondents appeal. Reversed and remanded.

The caption is as follows:

A transcript of the record and proceeding had in a certain cause pending in the circuit court of Washington county state of Alabama, therein lately pending, wherein N.N. and T.J. Powell were complainants and A.G. Richardson and others were defendants.

The original bill and summons was:

N.N. and T.J. Powell v. A.G. Richardson et al., Chancery Court, Washington County, Ala.

The certificate of appeal is:

I, C.E. Pelham, register in chancery, in and for Washington county, state of Alabama, do hereby certify that in the above-entitled cause a decree was rendered by the chancery court in and for Washington county, state of Alabama, in favor of N.N. and T.J. Powell, and against A.G. Richardson and others, on December 3, 1914, for a partition of the land as prayed for in the bill, besides the cost of the court, and that on December 14, 1914, A.G. Richardson and others applied for and took an appeal from said decree, and gave an appeal bond with A.G. Richardson and W.H. Richardson and John A Richardson as sureties, etc.

The land sought to be partitioned were lots 8, 9, 13, 14, and 15 section 28, T. 6 N., R. 1 E., containing 92 26/100 acres. Respondents named were: A.G., H.L., H.B., J.L., John A., C.C. and F.M. Richardson, O.N. Onderdonk, and L.E. Lane. H.B. Richardson was afterwards excluded, and W.H. Richardson was substituted as a party respondent. It appeared from the testimony of T.J. Powell that he and his brother brought an ejectment suit in the circuit court of Washington county against A.G. Richardson and others, and that judgment was rendered for defendants in that case. It seems that the ejectment suit was on behalf of A.G., W.H., Joe L., H.L., C.C., and F.M. Richardson, Ora Onderdonk, and L.E. Lane, and against N.N. and T.J. Powell, and after judgment was rendered for plaintiff, an agreement was entered into by which defendants were allowed to remain in possession of that portion of the land now in the actual possession of defendant, and shall pay plaintiff therefor the sum of $2 per acre as rent for so much of the land as may be cultivated by them. The lands sought to be recovered in the ejectment suit were the lands above described.

Joe M. Pelham, Jr., of Chatom, for appellants.

John S. Graham, of Jackson, and Wm. D. Dunn, of Grove Hill, for appellees.

SAYRE J.

The brief for appellees insists that the appeal should be dismissed for that the transcript fails to show that all the defendants joined in the appeal, nor does it appear that those not joining have been brought in as provided by the statute or the rule of practice for such cases made and provided. The motion to dismiss the appeal on the ground above specified has not been spread upon the motion docket as required by rule 16 (Code, p. 1509), but the submission on the motion has been received nevertheless and will be considered.

The motion is based upon the fact that the security for the costs of appeal is not signed by all the appellants. The security has been approved as sufficient by the register. It was not necessary that all the defendants should join in its execution. Indeed, some of the appellants are minors. The fact that the appeal was taken in the name and on behalf of all the defendants is evidenced by the formal application for an appeal in the...