Marshall v. Croom

50 Ala. 479

Opinion

PETERS, C. J.

The transcript shows, that the appeal is taken by Mrs. Augusta M. Gere, a married woman, who claims an interest in the property in controversy, under a conveyance from her father, executed since the Code of Alabama was proclaimed as the law of this State, and by Matthew A. Marshall and James B. Marshall. Matthew A. Marshall and James B. Marshall gave security for costs, by instrument in writing in these words, omitting the style of the case : “ We, G. M. Spinks and Caroline Spinks, acknowledge ourselves securities for all the costs of the appeal taken by the said Matthew A. Marshall and James B. Marshall from the judgment in said cause.” This was properly approved by the register, and a copy of the same sent up to this court as a part of the record, which is properly certified as such. The other defendant, Mrs. Gere, gave no security for costs, but claims the right to appeal as a married woman, on the ground that the decree of the learned chancellor in the court below is such as subjects to sale her separate estate. The record shows that she made the affidavit required in such a case.

The first and second objection to the appeal cannot be sustained. The acknowledgment for security for “ all the costs,” by Mr. and Mrs. Spinks, is sufficient, without more, to comply with the requisitions of the statute as to costs. Such an acknowledgment is in lieu of a bond. Crump v. Wallace, 27 Ala. 277; Riddle v. Hanna, 25 Ala. 484; Satterwhite v. Stdte, 28 Ala. 65. Here, the acknowledgment shows that the appeal is taken by the Marshalls, and security for the whole costs is given to bring up the whole case. This is enough to keep the case in this court, without more. Such an appeal will not be dismissed. Deslonde v. Carter, 28 Ala. 541. It is not necessary that the acknowledgment should be approved by the written indorsement of the register. If it has been received by that officer, approval will be presumed. Williams v. McConico, 25 Ala. 538.

The interest which the bill shows that Mrs. Gere claims in the land in controversy is sufficient to entitle her to appeal without giving security for costs. Whatever estate she may have in the land above said must necessarily be a part of her separate estate, either at common law, or under our statute. The decree of the court below subjects this interest to sale. This gives her the right to appeal without security for costs. Acts of Alabama 1870-1871, p. 45, § 1; Todd v. Neal’s Adm’r, at January term, 1873.

The motion to dismiss is denied, with costs.