Goss v. Davis , 21 Ala. 479 ( 1852 )

PHELAN, J.

— David Davis sued Sarah Goss, John J. Magee and his wife Mary E. Magee, formerly Mary E. Goss, before a justice of the peace, as joint makers of a promissory note. Magee and wife made no defence, and judgment was rendered against them by the justice on the 25th May, 1850, for the amount of the note and interest, and in favor of the other defendant Sarah Goss, who had pleaded non esi facium, against Davis for costs. Davis, under the statute, took an appeal to a jury. On the 11th August, the case between David Davis and Sarah Goss was submitted to a jury, who returned a verdict in favor of Sarah Goss, and judgment was rendered against him accordingly for the costs by the justice. Prom this judgment Davis took an appeal to the Circuit Court, and gave bond, which was made payable to Sarah Goss only.

Tbe cause was tried de novo in tbe Circuit Court, and tbe following is tbe judgment entry at Spring term, 1851:

David Davis, v. Sarah Goss, John J. Magee and his wife Mary E. Magee. This case, and another between tbe same parties, were ¡-brought to this court at tbe j last term, by appeal from a J justice’s court, and wore, at tbe last term, consolidated by consent; and at this term proper and sufficient pleadings, including a declaration containing counts on two promissory notes amounting to seventy-eight fW dollars, and common counts, were considered as filed as between tbe plaintiff and all tbe defendants, no one of tbe defendants contesting except Sarah Goss, and John J. Magee and bis wife Mary E. Magee failing to file any plea; thereupon came a jury,” &c. Tbe verdict was for tbe plaintiff, and judgment was rendered against all tbe defendants, naming them.

It appears from tbe bill of exceptions, that a motion was made at tbe trial term to dismiss tbe appeal as to John J. Magee and Mary E. bis wife, on tbe ground that no notice bad been given to them of the appeal, and that no appeal bond bad been executed to them. Tbe motion was overruled.

Tbe court was requested to charge tbe jury, that the judgment against said John J. Magee and Mary E. bis wife, in May, 1850, operated as a discontinuance of the suit as to Sarah Goss, and that plaintiff could not recover in this action; which charge tbe court refused.

These two matters are assigned for error. There is another assignment of error, relating to tbe competency of Mary E. Magee as a witness for Sarah Goss, but this has not been noticed in tbe brief, and is therefore considered as abandoned.

It is too late, after a cause has been once continued, for a party to object that be has not bad notice of an appeal. Hancock v. Holmes, 3 Ala. 9. It would also appear from tbe judgment entry, that tbe “ parties” at tbe previous term were present, and consented to a consolidation of the two causes.

Tbe motion to dismiss tbe appeal for tbe want of a sufficient appeal bond, came too late. It should have been made at tbe previous term. Payne v. Martin, 1 Stew. 61; ib. 407.

Tbe charge requested by tbe defendants was properly refused. Although it be true, that a judgment against one of tbe joint makers of a note, wbo are sued jointly, and upon wbom process bas been executed, is a discontinuance of tbe action, and tbe course pursued by tbe justice of tbe peace may be liable to that objection, it cannot be pretended there is not a final judgment in tbe case. Whenever that is tbe case, an appeal will lie, and when brought into tbe Circuit Court tbe cause must be tried de novo, without regard to any defect in tbe proceedings before tbe justice. Hart v. Turk, 15 Ala. 775, and authorities there cited. The only strict rule to which such proceedings are subjected is that there must be no change of parties. 8 Ala. 491; ib. 810.

Let tbe judgment be affirmed.