Cook v. Ligon ( 1877 )

Campbell, J.,

delivered the opinion of the court.

The act of March 24,1876 (Acts 1876, p. 35), authorizes this court to reverse a judgment as to some of the parties, and affirm it as to others in certain cases ; and it is an incident of a judgment of affirmance to render judgment for debt, damages and costs against the party failing to prosecute with effect his appeal or writ of error, and the sureties on the bond for super-sedeas. Code 1871, § 414. The condition prescribed for a bond for supersedeas of a judgment of the Circuit Court is “ for the prosecution of the appeal [or writ of error] to effect, or, in case of failure, for the payment or performance of the judgment, decree or sentence of the Supreme Court.” Code 1871, § 410.

Where two persons join in an appeal or writ of error, and the judgment is affirmed as to one of them, it cannot be said that they have prosecuted the appeal or writ of error to effect. One has; the other has not. The condition of the bond being that both shall prosecute to effect, the failure of either is a breach of it. The condition of this bond is that Evan Cook, individually and as executor, shall prosecute the writ of error to effect, or, in case of failure therein, shall perforin the judgment of this court. Evan Cook, as executor, did not prosecute the writ of error to effect, but failed therein ; and the judgment here is that the judgment of the Circuit1 Court against him be affirmed. The condition of the bond as to him can be discharged only by performance of the judgment of this court against him for debt, damages and costs. To hold otherwise would be to enable one person to profit by errors in a judgment as to another, which is precisely what the statute of March 24, 1876, was intended to prevent. If one as to whom there is no error appeals, the same consequences must follow as if he was a sole defendant in the judgment.

Motion denied.