Walsh v. Hill

• Decision Date: 17 November 1910
• Parties: WALSH v. HILL.
• Court: Alabama Supreme Court

53 So. 746

169 Ala. 410

WALSH v. HILL.

Supreme Court of Alabama

November 17, 1910

Appeal from Probate Court, Mobile County; Price Williams, Jr. Judge.

Bill by Edward Walsh, guardian ad litem, etc., and another, against Fannie Hill. From the decree, said Walsh appeals. Appeal dismissed.

Edward Walsh, in pro. per. Hamilton & Thornton, for appellee.

DOWDELL C.J.

This cause is submitted on merits and on motion of the appellee to dismiss the appeal. The decree of the probate court appealed from is a joint decree against the appellant, Callie White and Emma Green, and rendered upon a petition jointly filed by them. The present appeal is taken and prosecuted in the name of Callie White, by her guardian ad litem, alone.

"When one defendant wishes to revise a judgment rendered against himself jointly with others, he has a right to use their names for this purpose; but, if they are unwilling to join in assigning errors, they must be summoned after the case comes to the Supreme Court; and on their failure to join after such summons, an order of severance is granted, and the appellant then prosecutes his appeal separately." Savage &amp Darrington v. Walshe & Emanuel, 24 Ala. 293.

"The practice in appeals under the Code, where one defendant wishes to revise a judgment rendered against himself jointly with others, should conform to the former practice under writs of error. The appeal must be sued out in the name of all the defendants, after which there may be a summons and severance as to those who refuse to join; and after a severance the party refusing to join will not be liable for the costs of the appeal, nor for the statutory damages on affirmance." Moore v. McGuire, 26 Ala. 461.

In the case of Deslonde & James v. Carter et al., 28 Ala 541, it is said: "In Moore v. McGuire, 26 Ala. 461, the rule is laid down that 'when there are several defendants, against whom a joint judgment is rendered, or a joint duty is imposed by the decree of the court, they cannot sue out separate appeals.' This is a very recent exposition of the rule, and we are satisfied with it. Under its authority, if one defendant, thus circumstanced, sues out a separate appeal, and the objection be taken, the court will dismiss the appeal. The same case declares the proper rule of practice in such cases, namely, that the appeal shall be taken in the names of all the defendants."

The objection was taken in the present case by timely ...