Vaughan v. Higgins , 68 Ala. 546 ( 1881 )

SOMERYILLE, J.

Where a judgment is rendered against several defendants in the circuit court, an appeal to this court from such judgment should be taken in the name of all of the parties defendant and not in the name of one of them alone. In such cases, the certificate of the clerk of the court below should show, that the appeal was taken by the party actually applying for it, in the name of all, and the bond should be conditioned for the prosecution of the appeal generally, and not for the prosecution of a separate appeal by one of the parties.—Moore v. McGuire, 26 Ala. 461. If any of the parties aggrieved refuse to join in the assignment of errors, the uniform practice is for the appellant to request a summons and severance as to them, the cause proceeding after-wards in the name of the party at whose instance the appeal was taken.

Where an appeal is taken in the name of one instead of all of the parties, plaintiff or defendant, as in this case, it may be dismissed on motion of tbe appellee made before tbe submission of tbe cause, unless a counter motion be made in proper time by the appellant to perfect the appeal by amendment, as now authorized by statute.—Cullum v. Batre, 1 Ala. 126; Harper v. Bibb, 45 Ala. 670; Code, 1876, §§ 3931-32.

But where, on such appeal, prosecuted by one of several parties, the cause is submitted without objection, and the appellant alone assigns errors, the settled practice is for this court not to dismiss the appeal ex mero motu because of such-amendable irregularity, or defect, but to proceed to render judgment as if no such defect existed. The submission and joinder in error will be construed as a waiver on the part of the appellee.—McDowell v. Jones, 58 Ala. 25-36.

The judgment rendered against the appellant by the Circuit Court was clearly erroneous. Appellant was the surety of Hendricks and not of P. R. Grimes. The condition of thisf bond was that Hendricks should prosecute his writ of certiorari to the justice’s court to effect, which he did in the Circuit Court by there obtaining a judgment in his favor. The plea of infancy interposed by Hendricks was sustained, and judgment rendered for him on the merits of the cause. It is true that a judgment was rendered against P. R. Grimes for the debt in controversy, who was one of the makers of the note sued on, but the surety of Hendricks was not responsible for the debt of Grimes.

The case, it may be, was irregularly in the Circuit Court so far as concerned P. R. Grimes, he not having joined in the petition for the certiorari. But he filed his plea and went to trial without objection, and took no appeal from the judgment rendered against him in the Circuit Court.

We think the court below erred in rendering a judgment against Vaughan, who is the sole appellant in this court, and as to him the judgment is reversed, but the cause need not be remanded. As to the other parties, who have made no complaint, it is undisturbed.

The error complained of is obviously a mere clerical misprision, and would no doubt have been corrected on application to the Circuit Court by proper motion.—Code, 1876, § 3154. Judgment will, therefore, be, rendered in this court, according to the uniform practice in such cases, correcting the judgment of the lower court in this particular, at the cost of the appellant. Gould v. Myer, 36 Ala. 564; Drane v. King, 21 Ala. 556; Kennedy v. Young, 25 Ala. 563; Galle v. Lynch, 21 Ala. 579; 1 Brick. Dig. p. 105, §§ 327 et seq; Ford v. Tinchant, 49 Ala. 567.