Smith v. . Cunningham

30 N.C. 460

• Court: Supreme Court of North Carolina
• Decided: August 5, 1848
• Status: Published

Opinion

Nash, J.

That one defendant cannot appeal from a joint Judgment has been considered as the settled law of this State, since the case of Hicks and Gilliam, 4th Dev. 217. That case has been repeatedly noticed in subsequent cases and approved. That the principle operates in many cases harshly, has been felt and admitted, but the principle is considered as sound law. The objection made by the defendant cannot avail him. It was taken in the case of Dunns & Mcllvaine, against Jones, 4th Dev. and Bat. 154 and overruled. In’ that case the action was brought in the County Court of Franklin, against one Ward and the defendant Jones. The defendants severed in their pleas, but the Judgment was joint. Jones appealed and Ward refused to join him. At the ensuing Term of the Superior Court, to which the appeal was returned, the plaintiff obtained an order for taking a deposition, and the cause was continued. At the next Term of the Superior Court the appeal was dismissed on the motion of the plaintiff, upon the objection that it was an appeal by one defendant from a joint judgment. His Honor’s judgment was sustained by the Court. This case is recognized and approved, in the subsequent case of Stiner v. Cawiliorn, 4 Dev. and Bat.. 501.

Per Curiam. Judgment affirmed.