Hackley v. Hope , 2 Abb. Ct. App. 298 ( 1868 )

Mason, J.

[After staling the facts as above.]—The question is here presented whether Hackley’s appeal from the whole judgment stayed all proceedings on Burt’s decree against Hope; if so, then the execution which Burt has caused to be issued thereon, must be set aside. The rule in chancery is, that no one can appeal from an order or decree who is not injured thereby, and even a party who is aggrieved by one branch of a decree does not thereby acquire a right to call in question another potion of the decree, which has no bearing or effect upon his rights or interests. Cuyler v. Moreland, 6 Paige, 373; Idley v. Bowen, 11 Wend. 337.

And, where a party has released all his interests in a suit, he has no right to appeal from, an order or decree made therein which does not prejudice him, although it may be wrong as to other parties. Steele v. White, 2 Paige, 478. Hackley having transferred and released all his interest in the subject matter of the litigation to the defendant Hope, and there being no decree personally against Hackley for costs, or anything else, there is no ground upon which his appeal from the decree can by any contingency ever be successful. The defendant Hope, however, claims and insists that such appeal being perfected, and the proper under caking to stay the judgment having been made by Hackley, it operates to stay all proceedings as to all parties, and that consequently Burt had no right to issue this execution against Hope. “

This appeal of Hackley does not bring in review the decree which the defendant Burt has obtained against Hope; and this undertaking, which Hackley has given on his appeal, cannot, upon any just or reasonable construction of section 335 of the Code, be held to stay that judgment. The language of the section is: “ If the appeal be from a judgment directing the payment of money, it shall not stay the execution of the judgment, unless a written undertaking be executed on the part of the appellant by at least two sureties, to the effect that, if the judgment appealed from, or any part thereof, be.affirmed, or the appeal be dismissed, the appellant will pay the amount as to which the judgment shall be affirmed, if it be affirmed only in part, and all damages which shall be awarded against the appellant upon the appeal.” Code of Pro. § 335. This appeal of Hackley’s cannot be regarded as an appeal from the judgment which Burt obtained against Hope, and consequently the undertaking of Hackley cannot reach it, aud upon no construction should it be held to stay the execution thereof. If the two thousand dollars which Hope paid to Hackley was due him on a just accounting, the effect probably would be to diminish the funds in Hope’s hands to be divided between him and Burt, and it would follow that Burt’s decree against Hope is too large.

If this is so, Hope should have appealed therefrom, and then it could have been corrected. Hot having done so, he must suffer the consequences.

The order appealed from must be affirmed.

Clerks, J., expressed the same views.

A majority of the judges concurred.

Order affirmed, with costs.