Camden National Bank v. Donaghey , 145 Ark. 529 ( 1920 )

McCulloch, C. J.

(On motion to dismiss appeals). The plaintiffs, Camden National Bank, Cotton Belt Savings & Trust Company, First National Bank of Fort Smith, C. H. Triplett, Standard Lumber Company, Hammett Grocer Company and Citizens Bank of Pine Bluff and certain other parties who have not attempted to appeal and do not now appear in this court, instituted separate actions against the defendants, George W. Donagliey and certain others, sued as alleged copartners, to recover money due from the copartnership. The causes of action were separate. Seven of the actions were instituted in the circuit court of Jefferson County, and were subsequently transferred to the chancery court. The other actions were instituted in the Jefferson Chancery Court, and all of the actions were there consolidated pursuant to the statute (Acts 1905, p. 798), which provides that separate causes of like nature may be consolidated for trial.

Defendant Donaghey alone appealed and made defense, and the consolidated causes proceeded to final decree, dismissing each of the complaints against Donaghey for want of equity. The several decrees were, under one caption and under one recital as to the appearances, hut in all other respects the decrees were separate. The day before the expiration of the time allowed by law for appeals to be prosecuted, there was presented to the clerk of this court in writing, the following prayer for appeal:

‘ ‘ In the Supreme Court of Arkansas. ’ ’

Camden National Bank et al., Appellants, v. W. A. Mathews, et al., Appellees.

“motion and prayer, eor appeal.

“Come the appellants, Camden National Bank et al. and pray an appeal to the Supreme Court of the State of Arkansas from the judgment of the chancery court of Jefferson County, Arkansas, rendered in this behalf on the 14th day of January, 1920'.

“Taylor, Jones & Taylor,

“Rowell & Alexander,

“Crawford & Hooker,

“Attorneys for Appellants.”

The clerk endorsed on the above writing the words “Appeal granted” and signed the endorsement and issued summons. All of the plaintiffs above named have since that time filed abstracts and briefs, and the defendant Donaghey now moves against all the parties except Camden National Bank to dismiss the appeals, on the ground that they have not properly appealed.

It will be observed that none of the plaintiffs, save Camden National Bank, are named in the prayer for appeal, unless it be held that the abbreviation “et al.” is sufficient to designate them. The prayer does not refer to the plaintiffs by name or class, but merely refers to “the appellants'Camden National Bank et al.” Is this sufficient to include any of the plaintiffs not expressly named?

An appeal, when granted by the clerk of the court, is in the nature of a new and independent proceeding before a different court than that in which the cause originated, and there must be an appropriate designation, in some form, either expressly or by necessary inference, showing what parties are prosecuting the proceedings. Conceding that the parties could, under the circumstances of this case, jointly prosecute ap1 peals to this court, they have not done so. unless we hold that the abbreviation “et al.” includes them. "We think that by no process of reasoning- can we so hold. The abbreviation used, interpreted literally, is “and another,” and does not indicate which one of the other parties joined in the prayer for appeal. But, assuming that according to popular usage the abbreviation could be interpreted in the plural as “and others,” the designation is no more definite, for it does not show which of the numerous other plaintiffs joined in the appeal. If the word “plaintiffs” had been used, it might be- urged that all of the plaintiffs were joining, but that word was nowhere used in the prayer or caption. The prayer was signed, it is true, by several attorneys, and if we permit ourselves to explore the record to ascertain which of the plaintiffs they severally represented, we would find that each of the attorneys represented more than one of the plaintiffs in the trial below, so the designation would then be equally uncertain, for there is nothing to -show which one of the plaintiffs—whether one or two— joined in the prayer. There seems to be an abundance of authority on this precise question that such a designation of the parties is not sufficient. Miller v. McKenzie, 10 Wall, 582; State v. Canfield, 40. Fla. 36; Cornell v. Franklin, 40 Fla. 149; Sadler v. Smith, 54 Fla. 671, 45 So. 45; Lyman v. Milton, 44 Cal. 630; Brabham v. Custro, 3 Neb. 801, 92 N. W. 989; Cameron v. Sheppard, 71 Ga. 781; Swift v. Thomas, 101 Ga. 89, 28 S. E. 618; Orr v. Webb, 112 Ga. 806.

This rule finds direct support from our own decision in Boqua v. Marshall, 88 Ark. 373. The case of Waters-Pierce Oil Co. v. Van Elderen, 84 Ark. 555, does not, as urged by counsel for plaintiffs, sustain the appeals in the present case. In that case each party specifically prayed an appeal.

The case of Johnson v. West, 89 Ark. 604, has no application to the present case. The defense interposed in that case was common to all and was a joint one, the appeal was granted by the trial court and no question was raised as to which of the defendants attempted to appeal. The record recited that the attorney (naming him) prayed an appeal and that the appeal was granted. The attorney was not a party to the record except as the representative of his clients, all of the defendants and the question for decision whether or not any effect could be given to his prayer for appeal, and this court held that his prayer for appeal was necessarily referable to a prayer in his representative capacity for his clients. The instant case presents no such state of facts. Neither does the case of Wimberly v. State, 90 Ark. 514, cited by counsel, have any application. That case involved the question of the right of the proper party to .adopt an appeal taken by another.

However, it is not correct to say that the appeals ought to be dismissed, for there are no appeals properly here except that of Camden National Bank. The abstracts and briefs of the other plaintiffs will be stricken out, for the reason that they have not appealed. It is so ordered.