Deslonde v. Carter

28 Ala. 541

• Court: Supreme Court of Alabama
• Decided: January 15, 1856
• Status: Published

Opinion

STONE, J.

Motion in this case is made by the appellees to dismiss the appeal. The ground urged is, that the appeal bond does not conform to the case in the court below, — and that therefore there is no proper security for costs.

. In Moore v. McG-uire, 26 Ala. 461, the rule is laid down, that “ when there are several defendants, against whom a joint judgment is rendered, or a joint duty imposed by the decree of the court, they can not sue out separate appeals.” This is a very recent ¿^position of the rule, and we are satisfied with it. Under its authority, if one defendant, thus circumstanced, sue out a separate appeal, and the objection be taken, the court .will dismiss the appeal. The same case declares the proper rule of practice in such cases; namely, that the appeal shall be .taken in the names of all the defendants. In the case of Moore v. McGuire, supra, the bond was held insufficient, because its cohdition was, that the one party who gave it should prosecute his appeal.

To render the appeal effectual, it is not necessary that the bond shall, in so many words, recite that the one defendant to .the joint judgment sues out the appeal in thenames of all. It is sufficient, if, upon a fair construction of its language, this is made to appear. In other words, if the bond shows that the whole case is brought up, the appeal will be entertained.

The present bond brings up the iohole case. The decree of the probate court is against Edmund A. Deslonde and Robert D. James; and1 the bond of Deslonde, although not joined in by James, nowhere indicates that it is the individual appeal of Deslonde. The faxilt of the argument, in favor of the motion to dismiss, lies in the supposition that Deslonde’s bond is his individual appeal. The case of Savage & Darrington v. Walsh & Emanuel, 24 Ala. 293, presented the precise point here raised; and the motion' in that case was overruled, on the grounds assigned for this opinion. The report of the case contains no statement of the condition of the bond. Looking into the record, we find' no substantial difference between the bond and certificate in that case and the same papers found in this record.

Motion refused.