Cooly v. Julin ( 1830 )

Peck, J.,

delivered the opinion of the court. -

By the act of 1827, ch. 52, any one or more of several defendants, may appeal, arid the judgment below will remain in force, as to the defendant or defendants not appealing. Did Cockran join in the appeal? This we must ascertain from the whole record, and-from what the parties themselves understood of the case when it reached the circuit court. This court has decided, that a recital in an appeal bond, will not of itself be proof of an appeal prayed and granted. But when the record shows the appeal granted, the appeal bond and act of the parties may be resorted to, to explain what otherwise was ambiguous, to wit, whether or not all the defendants had joined in the appeal. In this case, we think Julin has precluded himself from asserting for error, that the circuit court should have proceeded against Cockran as well as himself, seeing that Julin on the face- of his appeal bond, recited that he has prayed and obtained an appeal. We take that recital and the acts done in the circuit court, by both plaintiff and defendánt, as conclusive to show that Julin alone, was contending in the circuit court. If it had been otherwise, why did not Julin have the record amended, so as to show that both himself and Cockran had brought up the appeal, and that they were both contending with the plaintiff? The fact was, that Cockran never gave security; he is not a party to the bond; the security entered was for Julin. The justice would have done wrong to have granted the appeal to him, who would not, or had failed to enter surety: and we will construe his acts to have been consistent with what it was his duty to have done; that is, to grant the appeal to him who complied with the acts of assembly requiring that security should be given.

Judgment affirmed.