Loftin v. . Kornegay

33 N.C. 437

• Court: Supreme Court of North Carolina
• Decided: December 5, 1850
• Status: Published

Opinion

Peaksost, J.

This was debt on a note, executed by Kornegay, Davis and Jarman. The defendants did not resist the plaintiff’s recovery; but Jarman “pleaded” that he was the surety of Kornegay and Davis. Davis “ pleaded” that he and Jarman, were sureties of Kor-negay.

The jury returned a verdict for the plaintiff, and found that Jarman was a co-surety with Davis. From the judgment rendered on this finding, Jarman was allowed to appeal, the other defendants not objecting.

This proceeding is under thejsec . 131, 132, ch. 31, of the Revised Statutes. The “pleas,” as they are called, do not contest the plaintiff’s right to recover, but merely raise a family dispute between the defendants, in which the plaintiff has no concern. It is very questionable whether the right of appeal is given in such cases, as an appeal must necessarily delay the plaintiff’s admitted right of recovery. But in this case, the appeal is only taken by the defendant Jarman, and it is settled that one of two defendants cannot appeal. In such cases it is hardly to be expected that the other defendant will join in the appeal, as he has no reason to complain of the result.

Per Curiam. Appeal dismissed.