Sellers v. Smith

• Decision Date: 06 June 1905
• Citation: 39 So. 356,143 Ala. 566
• Parties: SELLERS v. SMITH.
• Court: Alabama Supreme Court

39 So. 356

143 Ala. 566

SELLERS v. SMITH.

Supreme Court of Alabama

June 6, 1905

Appeal from Circuit Court, Montgomery County; T. S. Sayre, Judge.

Action by W. P. Smith against C. M. Sellers. From a judgment of the circuit court, rendered against defendant and his surety on appeal from a judgment against defendant in a justice court he appeals. Dismissed.

Goodwyn & McIntyre, for appellant.

Martin & Martin, for appellee.

TYSON J.

This action was originally brought in a justice court. Judgment was there rendered against the defendant, from which he appealed to the circuit court, executing a bond, with McIntyre as his surety. In the circuit court the defendant was again cast in the suit, and judgment was rendered against him and McIntyre as provided by the statute. Section 493, Code 1896.

This appeal is prosecuted by Sellers alone, and not for and on behalf of himself and McIntyre. On this ground a motion to dismiss the appeal is made. This precise question arose in Eastland v. Jones, Minor, 275, which was brought to this court by writ of error. On motion the writ of error was quashed, because Wallace, surety upon Eastland's appeal bond from justice court, against whom judgment was rendered by the circuit court in conformity to the statute, was not a party to the writ. The court said: "A motion is now made to quash the writ of error on the ground of nonjoinder of Wallace. It is contended for the plaintiff in error that, as Wallace was not an original party to the suit and only came in as security, the writ was properly sued out in the name of Eastland alone. We consider the rule as well settled that all the parties against whom the judgment was rendered, if living, should join in the writ of error. Wallace was certainly a party to the judgment of the circuit court intended to be reviewed in this court, and he ought to have joined in the writ of error." See, also, Vaughn v Higgins, 68 Ala. 546, and cases cited in 1 Brickell's Dig. § 101, p. 90. The same rule obtains where the case is brought here by appeal. 1 Brick. Dig. § 119, p 91. The appellant should have taken the appeal in the name of himself and McIntyre, which he had the right to do without the latter's consent; and if McIntyre is unwilling to join in assigning errors he could be summoned after the case comes to this court, and on failure to join after summons an order of severance could be obtained, and appellant could then prosecute...