Powell v. Sturdevant , 85 Ala. 243 ( 1887 )

SOMEBYILLE, J.

It appears on the face of the record, that the bill of exceptions was signed after the expiration of the time fixed by the order of the presiding judge. The judge, during term time, under the authority conferred on him by the recent act of February 22, 1887 (Acts 1886-87, p. 126), regulating the signing and allowance of bills of exceptions, had made an order on the application of the defendant, fixing the period within which the paper was to be signed, at thirty days from September 16, 1887. No subsequent order was made, during vacation, extending this time. It should have been signed within the prescribed time. The signature on the ,17th' of October following was one day too late, and the motion to strike the bill from the record must be sustained. — Pearce v. Clements, 73 Ala. 256; Wood v. Brown, 8 Ala. 563.

With the bill of exceptions fall all assignments of error based on it, and we are not at liberty to consider any of them.

The action is one of unlawful detainer, in which judgment was rendered in favor of the plaintiff, against the defendant Powell, and the sureties on his appeal bond, both in the justice’s court, and in the trial de novo which took place on appeal to the Circuit Court. The appeal to this court is by Powell only, and the assignments of error are made by him alone. The verdict of the jury assessed the plaintiff’s “damages” at one hundred dollars, and the judgment is against both the defendant and his sureties, for costs and one hundred dollars damages.

It is insisted for appellant that this is error, for the reason that section 3411 of the Code, 1886 (Code, 1876, 3712— 3713) provides, where a supersedeas bond has been executed, that judgment must be rendered in unlawful detainer, against the defendant and his sureties, for “the value of the rent of the premises pending the appeal.” This would probably be an informal error, which, if well taken, would be subject to correction in this court, provided the appeal bond were in the statutory form. But, independently of this, section 3391 of the Code (1886) particularly provides for the recovery of special damages in cases of this kind. It declares that any person, who, having entered into possession under a lease, forcibly or unlawfully retains possession after the expiration of his term, and refuses to surrender” the premises on written demand, “is liable for double the annual rent agreed to be paid under such contract, and for such other special damages as may be sustained by the party thus unlawfully kept out of possession, to be recovered as now provided by law in actions of unlawful detainer, or by an action at law for damages.” — Code, 1876, § 3709.

If necessary to sustain this judgment, we must presume that the evidence before the court and jury made a case which fully authorized it. • •

It may be true, as contended, that the supersedeas bond in the record, unlike the one required by section 3401 of the present Code, is not conditioned to pay the plaintiff any damages he may sustain by the prosecution of the appeal. But the appellant was liable himself for such damages in this action; and no one but the sureties themselves can urge the objection, that the bond did not bind them to pay such damages. An irregular or erroneous judgment against sureties, can not be assigned as error by the principal, where the sureties themselves make no complaint, and the judgment is correct as against the principal.' — Medlin v. Wilkinson, 81 Ala. 147.

There is no error discoverable in the record, and the judgment must be affirmed.