John Brown and Others v. Jacob Gyre ( 1812 )

Overton, J.

delivered the opinion of the court.

The record shows, that Jacob Gyre had obtained a judgment in Washington county court against John G. Brown and Charles Robison ; that an execution issued thereon, and that the sheriff of the county, under an act passed in 1809, took a bond from John G. Brown and Charles Robison with Jacob Brown and John Parker their securities, for the stay of said execution twelve months, that after that time had elapsed, Gyre in the county court, moved for and obtained judgment on the bond against John G. Brown, Charles Robison Jacob Brown and Parker; that Jacob Brown alone, moved for and obtained an appeal to the circuit court ; that court entered up judgment, not only against Jacob Brown, but against the other three, who executed the bond likewise , from which last judgment the appeal was taken to this court.

Upon this state of the case, we are of opinion, the circuit court erred, in rendering judgment against persons who were not before them ; three of the persons against whom the county court rendered judgment, complained of no injustice therein. They never appealed to the circuit court, but acquiesced in the county courts judgment; it therefore would seem unjust in the county court, to give a judgment against them. Upon that ground, the judgment of the circuit court must be reversed. The next question is, what we ought further to do in this cause. It appears to us, that we ought to give such judgment as the circuit court should have given; and we believe the circuit court ought to have dismissed the appeal of Jacob Brown. The judgment had been rendered against him and three others, and he could not (at all events without applying to the three defendants) appeal and carry up his part of the cause alone- such appeal, ought to have been dismissed by the circuit court, and must now be dismissed by this court, which will leave the judgment of the county court, in force against all the parties to that judgment, and will enable Gyre to issue execution thereon.