Tanquary v. Howard

• Decision Date: 04 December 1905
• Citation: 35 Colo. 125,83 P. 647
• Parties: TANQUARY v. HOWARD.
• Court: Colorado Supreme Court

83 P. 647

35 Colo. 125

TANQUARY v. HOWARD.

Supreme Court of Colorado

December 4, 1905

Appeal from District Court, Arapahoe County; Booth M. Malone, Judge.

Action by Henry Howard against N. Q. Tanquary and another. Judgment for plaintiff, and defendant Tanquary appeals. Appeal dismissed.

Ward & Ward and Charles Roach, for appellant.

Allen &amp Webster, for appellee.

CAMPBELL J.

The judgment was for the appellee and against the appellant Tanquary and F. E. Carringer jointly. To this judgment they excepted and jointly prayed an appeal, which was allowed upon condition that they file a prescribed appeal bond. Carringer the other judgment debtor, did not, by himself or any other person, sign the appeal bond. It was executed by Tanquary and for himself only. Tanquary did not pray for nor was a separate appeal granted to him. He prosecutes this appeal in his own behalf, and in his own name, without using the name of the other judgment debtor.

Section 400 of our Civil Code (Mills' Ann. Code) provides that in all cases where a judgment or decree shall be rendered against two or more persons either one may remove the suit to the Supreme Court by appeal or writ of error, and for that purpose may use the name of all of said persons, if necessary. This section, in substance, is the same as section 30, p. 227, Sess. Laws 1879, which was construed in Diamond Tunnel G. & S. M. Co. et al. v. Faulkner, 14 Colo. 438, 24 P 548, wherein, referring with approval to its previous decisions, this court held that the permission given by this section did not affect the rule that a joint appeal by all the defendants must be prosecuted by all. Andre v. Jones, 1 Colo. 489; Fuller v. S. R. Placer Co., 5 Colo. 123. Our Court of Appeals has announced the same doctrine in Creswell v. Herr, 9 Colo.App. 185, 48 P. 155, and, by necessary implication, in Campbell v. Securities Co., 12 Colo.App. 544, 56 P. 88. This seems to be the general rule in the absence of a statute to the contrary. American Digest (Century Ed.) vol. 2, § 1811; McIntyre v. Sholty et al., 139 Ill. 171, 29 N.E. 43. This cause cannot be entered as pending on writ of error under section 388a, Mills' Ann. Code because the same objection to the prosecution of a joint appeal by one of two or more judgment debtors without joining the others applies to a writ of error.

The appeal, therefore, must be dismissed, and the cause remanded.

Appeal dismissed.

GABBERT,...