8 Ga. 330 | Ga. | 1850
By the Court.
delivering the opinion.
The second section of the Act declares, “ that upon the appeal, either of the plaintiff or defendant, as aforesaid, the whole record shall be taken up ; but in case damages shall or may be awarded upon such appeal, such damages shall only be recovered against the party or parties appealing, and their securities, and not against the party or parties failing or refusing to appeal.” Hotchkiss Dig. 601. There is great difficulty in giving such a construction to this Act, as will prevent all practical inconvenience. The best view to take of it, however, in our judgment, is, to regulate the rights of the parties according to their own action in the matter. Where one of the parlies, either a joint plaintiff or de
The result of the trial, on the appeal, may increase or reduce the first verdict. If the verdict shall he increased, then the party not appealing, ought not to be prejudiced by it, as he was no party to the appeal, but was entered against his wishes and consent. If the verdict shall be -reduced on the appeal, then the party not appealing, has no right to complain, for his failure to enter an appeal was his own act, and he must abide the result of his own action in the premises.
But as the whole record goes up on the appeal, no execution can issue against the party not appealing, until after the trial on the appeal.
Battle alone entered an appeal to the Superior Court, from the verdict rendered against him in the Inferior Court; Chaffin and Dickinson did not appeal. After entering the appeal, Battle filed three pleas : 1st. The general issue. 2d. Failure of the plaintiff to sue the principal in the note, within the time prescribed by the Statute, after notice to do so by Battle, the security. 3d. That the firm name of Dickinson & Battle was signed to the note by Dickinson, without authority of Battle, either express, or resulting from their copartnership. On the appeal trial, a verdict was found in favor of Battle, but the Jury found a verdict against Chaffin and Dickinson, the parties not appealing, for the principal and interest due on the note, with costs. It does not ajrpear affirmatively, on the face of the record, on which of the pleas filed by Battle, the Jury found a verdict in his favor, although there is strong presumptive evidence that they found in his favor upon the second plea, that the plaintiff failed to sue within time, after notice,
In order to oust the jurisdiction of the Court, a clear case should be made, which, in our judgment, is not the fact here. As before remarked, this record affords strong presumptive evidence that the Jury found a verdict in favor of Battle, upon his second plea; but in order to oust the Court of jurisdiction, it ought to be made clearly to appear, that the verdict was, in fact, found upon his third plea, which denied he was a joint promissor with the other defendants. Battle did not deny the execution of the note, on oath, as required by the Judiciary Act of 1799, which is ano-
According to the view we take of the Act of 1839, when Battle entered his appeal, the whole record was taken up to the Superior Court, but the judgment rendered against Chaffin and Dickinson, in the Inferior Court, was not vacated by the appeal of Battle. The appeal by Battle only vacated the judgment as to him, but left it in full force as against the parties not appealing, with the right of the plaintiff to have execution against them, whenever the appeal trial shall be decided — inasmuch as the whole record is taken up by the appeal. Chaffin and Dickinson not appealing from the first verdict, the Jury, on the appeal trial, were not authorized to find a verdict against them, who were not before the Court by their consent. The judgment rendered against them in the Superior Court, on the appeal trial, was properly vacated by the Court below, for the reason which we have stated ; and on that ground alone, we affirm the judgment of the Court below.