Riddle v. Hanna

25 Ala. 484

• Court: Supreme Court of Alabama
• Decided: June 15, 1854
• Status: Published

Opinion

G-OLDTH WAITE, J. —

The record shows that some of the complainants in whose favor the decree was rendered were infants, and it also shows that the appeal was taken by “ the solicitor of the complainants.” It is true, that it appears the suit was prosecuted, so far as the minors were concerned, by their next friend ; but that does not make him a party complainant : he is placed upon the record in order that the court may have some one before it, who is responsible for the conduct of the case and the costs. An infant cannot act by attorney in taking an appeal, which is in the nature of a new action, any more than in other legal proceedings. — Bradford v. Weeks, 1 Johns. Ch. 325. So far as they are concerned, the case stands here as if no appeal had been taken.

As to the appellants who are of full age, the certificate of the register is, in substance, that they came by their solicitor and applied for an appeal; and we will presume authority in their attorneys to act, precisely as we do in other legal proceedings. If there was no authority, the Code has madepro-vision for the case in that aspect by sections 144 and 146.

In relation to security for costs, no bond is necessary. This is not the practice in cases in the Circuit Court where suits are commenced by non-residents. A simple acknowledgment in writing is all that is necessary, where the appeal is not intended to act as a supersedeas.

The dismissal of the appeal has been pressed upon us, on the ground that some of the appellants hare received satisfaction of the decree. The rule established in Knox v. Steele, 18 Ala. 815, is, that when that is the case, the parties who have received satisfaction will not be allowed to assign errors until they have done what is necessary to place the other party in statu quo.

As the record shows that the decree was enforced on the petition of all the appellants who are of full age, and as they have received satisfaction, and as the appeal under the circumstances must be regarded as taken by them alone, before they can be permitted to proceed in this court, they must refund the money received by them; and if this be not done by the next term of the court, the appeal will be dismissed.