Green v. Planters' Bank

4 Miss. 43

• Court: Mississippi Supreme Court
• Decided: December 15, 1838
• Status: Published

Opinion

Mr. Justice Prat

delivered the opinion of the court.

This was a motion in the court below, made by the plaintiffs in error and others, their co-defendants, to quash a forthcoming bond for reasons assigned.

The reasons were deemed insufficient, and the motion was overruled.

From this judgment of the court below, the plaintiffs here, two out of four of the defendants below, prayed an appeal to this court which was granted, and the cause brought into this court.

A motion is now made here, to dismiss the appeal so taken: because,

The judgment in the court below, was rendered against James D. Goff, William L. Davidson, Henry Gran, and Benjamin E. Phillips: and the appeal is taken by Gran and Davidson, without summons and severance.

There can be no doubt that the appeal should be in the name of all the parties against whom the judgment was rendered. If some will not join in the appeal, any one who may desire a revision of the judgment, may prosecute his appeal. Then by summons in severance, he might proceed on his own case alone and exempt himself from any eventual liability for the others. Young v. Ditto, 2 J. J. Marshall, 72.

This we are satisfied is the law as applicable in the present case. Here the appeal is prosecuted only by two, and there is no summons and severance.

It is, therefore, irregular, and must be dismissed