Sherrod v. McGruder

• Decision Date: 19 April 1923
• Docket Number: 2 Div. 799.
• Citation: 209 Ala. 260,96 So. 78
• Parties: SHERROD v. MCGRUDER ET AL.
• Court: Alabama Supreme Court

96 So. 78

209 Ala. 260

SHERROD v. MCGRUDER ET AL.

2 Div. 799.

Supreme Court of Alabama

April 19, 1923

Appeal from Circuit Court, Perry County; S. F. Hobbs, Judge.

Action by Tennessee McGruder and others against Etta Sherrod and others. From a judgment for plaintiff, Etta Sherrod alone appeals. Appeal dismissed.

W. L Hogue, of Marion, for appellant.

R. B Evins, of Greensboro, and A. W. Stewart, of Marion, for appellees.

THOMAS J.

The suit, after revival, was against several defendants and resulted in judgment for plaintiffs. The appeal was taken and error assigned by only one of the defendants in judgment.

The fact that the appeal is taken only by Etta Sherrod is attested by the "notice of appeal," notice thereof "to attorneys for plaintiffs," and in her "appeal bond." Codefendants are not shown to have been brought in by notice or summons issued out of the circuit court or out of this court.

In the case of an appeal by one of codefendants, in order that this court may have jurisdiction of the other parties against whom judgment was rendered, it is necessary that summons issue to such codefendants, not appealing, as required by the statute (Gen. Acts 1911, p. 589), or that they be brought in pursuant to an order of the court to which the appeal is taken. This court may not, as invited so to do, conclude the rights of the other parties without having them before it. The right of the court to proceed to other judgment than that of dismissal of the appeal was the subject of discussion, where codefendants had not joined in the appeal and yet were properly before the court of their own motion, in L. & N R. R. Co. v. Shikle, 206 Ala. 494, 497, 90 So. 900. Such is not the case before us.

The Act of April 21, 1911, supra, amending section 2884 of the Code provided that any party against whom a judgment or decree is rendered may individually appeal to the Supreme Court or the Court of Appeals without taking the appeal in the name of the other codefendants. The same statute, however, provided that, in such an appeal, "the clerk or register of the court from which the appeal is taken, shall issue a summons when the appeal is so taken, to such as do not join in the appeal, to appear before the Supreme Court or Court of Appeals at the time to which the appeal is returnable, and unite in said appeal if he see proper, which summons may be served upon the party, or his attorney of record in the lower court." (Italics supplied.) It is a further provision of that statute that-

"If any of the parties not joining be nonresidents and not represented by an attorney in the lower court, the clerk or register may cause notice of such appeal to be sent by registered mail or published *** in some public newspaper."

Only after compliance with such statutory provision, or when the parties have been brought in by order of the...