Booker's Ex'rs v. Jemison , 4 Ala. 408 ( 1842 )

COLLIER, C. J.

It is well settled that where a judgment is given against several, any one of them may sue out a writ of error, but this must be done in the name of all. [1 Arch. Prac. 232, and cases there cited; Caller v. Brittain, Minor’s Rep. 27; Eastland v. Jones et al, id. 275; Tombeckbee v. Freeman, id. 285; Adams v. Robinson, ibid; Burn et al v. McLean, id. 208; Jameson v. Colburn, 1 Stew. & P. Rep. 253.] In Billinslea v. Abercrombie, [2 Stew. & Por. Rep. 24,] one of sevéral legatees prosecuted a writ of error in his own name' from a decree of the Orphans’ Court distributing the testators' éstate among all of them. The Court said-, “ Our statute d'oes xiót define who are to be parties to such a Writ of eríoí, ór appeal, but it is believed that it is so well established by the uniform practice of Courts, that all Who are to be affected by the judgment, or order, so sought to be' reversed, should in some way be made parties; that it does not require the aid of any express legislative enactment to sécúre this privilege. All of the legatees who were satisfied with the order of distribution, were interested in supporting it, arid had' as- Stróng claims to be heard before the order should be reversed; as Thomas Abercrombie, the one selected as a defendant;” To the same effect is the case Of Merrill v. Jones, [2 Ala. Rep. 192.] This rule is founded in convenience, and calculated to expedite the administration of justice; for if each one of the partiés who supposed himself aggrieved by a judg-' ment or decree, could bring a writ of error by himself, the judgment'might be suspended in its operation until it had bee'ii' affirmed once or oftener.

At the common law, a writ of error had the effect, wlién'al-lowed to supersede the execution, if it had not been' levied, and it removed the record to the appellate Court. [1 Arch. Prádticé, 233, et post.] This being its effect, a writ of error' Which removed part of the causé, could not be sustained. If the law Were otherwise one decision Would not terminate litigation, where a decree directed the payment of several súrhff of motley, but in order to its affirmance in toio, distinct writs oferror might be brought to revise the propriety of the direction of the payment of each sum. Such a course of procedure' would be quite as objectionable as the prosecution of separate”'’ Writs'by each of several defendants.

In Dale v. Mosely, [4 Stew. & P. Rep. 371,] which WaS the trial- of the right of property, a writ of fieri facias had be'eti' levied oh two slaves as the property of a third person; they5 Were claimed by the plaintiff, and a verdict found against' his claim. - A new trial on motion of'the claimant was grahted áhJ tú one of the slaves and refused as to the other. To' review the judgment so far as it was not set aside plaintiff sued a writ of error. The defendant moved to dismiss the writ of error, and the Court said, “After issue had been formed, and a verdict on it, we believe that the Court below had no authority to sever the matter put in issue and found by the jury; that the new trial should have. been entire, or not at all. We believe it would have been competent for the Court below to have offered the complainant his choice, to take a new trial for one of the slaves, on condition of his relinquishing his claim to the other. But this was not done, and the consequence is, that the claimant has sought to reverse the judgment of condenma tion against the one whilst the suit as to the other remains undetermined. The claimant was not compelled to accept the new trial; he might then have brought the whole case up.” It is then concluded that the writ of error should be dismissed.

The right to bring error upon a decree of the Orphans’ Court is given by a statute, which enacts that “from any judgment or order final, whether in vacation or term time, an appeal or writ of error shall lie to the Circuit or Supreme Court, in the same manner as upon judgments of the Circuit Courts.” [Aik. Dig. 246.] But for this act it might well be questioned whether a decree of the Orphans’ Court would be revisable on error, if, as has repeatedly been decided, it is a general rule, that where a new jurisdiction is created by statute, and the Court exercising it proceeds in a summary method, or in a course different from the common law, a certiorari is the only proper remedy. [1 Arch. Prac. 229; Ex parte Tarlton, 2 Ala. Rep. N. S. 35.] But whether considered with or without a reference to the statute, no writ of error can be sustained in this case, which does not remove to the appellate Court the decree in toto.

In the case at bar, both the plaintiffs and defendants are parties to the entire decree. The first order therein, which ascertains the sum of four thousand one hundred and one dollars and sixty-one cents to be due to the defendants as guardians of Edith M. Booker, and directs it to be paid to them in that character, is in their favor, and might be collect-. ed by an execution which omitted to describe them as gilar-dians. Although the decree directs that executions may issue, &c. we think it would be entirely competent, and perhaps the only regular mode to coerce payment, to issue one execution for the several sums. It is not pretended that the decree may not be rertioved by a single writ of error, and we think it is not allowable to issue several. The consequence is, the writ of error must be dismissed.