Ex parte Bogatsky Bros. & Co. , 134 Ala. 384 ( 1901 )

HARALSON, J.

The petitioners insist that their motion to dismiss the writ of certiorari in the lower court should have been granted, because the judgment in the justice’s court was against the partnership of A. B. & N. Fleisher, and also against A. B. Fleisher, and that the certiorari was sued out by A. B. Fleisher alone; or, in other words, because the judgment in the justice’s court was against two defendants, — A. B. & N. Fleisher, a partnership: under that name, and against A. B. Fleisher individually, — the cause could not be carried to the circuit court by certiorari, as- was here done, by A. B. Fleisher, one of the defendants.

Formerly (Tdulmin’s Dig., 510, § 3), the statute as to appeals and writs of ccrtiorwri from a justice’s court ■to the circuit court provided that “Any person aggrieved by the judgment of any justice of the quorum, or of the peace, may within five days thereafter appeal to the next superior court sitting i'or his county.” A similar statute appears in Clay’s Digest, 446, § 11.

In the Code of 1852, section 2864, it was provided “that either party aggrieved by the judgment rendered * * may prosecute an appeal thereon,” etc., and in the Code of 1896, section 481, that “any party may appeal,” etc. In construing the act of 1814, appearing in Toulmin’s Digest, it was held in Craig v. Atwood, 1 S. & P. 86, that where an action is brought against several defendants in a justice’s court, one of them without the concurrence of the others, may prosecute an appeal or sue out a writ of certiorari. The court said: “If any person aggrieved has the right to have that grievance redressed, he would be deprived of that right, if a co-defendant should refuse to join with him in the appeal, and thereby defeat what the legislature has made ample provisions for, and fasten an unjust judgment, in many instances, upon one of several defendants. This could not he consonant to mason and to justice. Hence, I conclude that one of several defendants has the right to appeal and execute a bond independent of his co-defendants, and by that means remove the proceedings from tire justice jurisdiction into a higher tribunal.”

The word “person ” as formerly used in the statute, is one, it may be, or larger significance than the word “party,” as used in the later one, but it certainly includes a party. The two- words, in common discourse, am used often synonymously. A person not a party to judicial proceedings, is not generally concluded by them, and has no right of appeal from any judgment or decree rendered therein. In some instances he may propound his interest, by petition to tire court below, and, after notice to the party having an interest, have himself made a party for the purpose of an appeal. — Reese v. Nolan, 99 Ala. 203. The construction given to- the earlier statute in the case referred to, is as applicable, therefore, to the present statute as if it had been rendered thereon. Indeed, it is difficult to see how the use of the word person, in the one, and party, in the other, makes any difference in them.

The former statute provided, as does the present one, that oases taken by appeal or certiorari from the justice’s to the circuit court, must he tried de novo. Whether the appeal or certiorari by one of two or more defendants, has the effect to transfer the entire cause to the circuit court, or1 only the case of the one appealing, there to be tried de novo, it is, 'perhaps, unnecessary now to decide; but, however that may be, it cannot bei questioned, without disregarding the very terms of the statute, and the decision of the.court in construction of it, — a construction which has received legislative adoption in the repeated re-enactment of it, — that one of the. several defendants may appeal or take his case by certiorari to the circuit court, and as to himself, at least, if.not as to the others, have his case tried anew.

Section 426 of the Code, as to appeals to the Supreme Court from judgments and decrees of lower courts, and the construction placed on it, has no’application to the statute in question.

The motion to dismiss the certiorari was properly overruled.

. Petition for mandamus denied.