Cumberland Coal & Iron Co. v. Jeffries

21 Md. 375 | Md. | 1864

Goldsborough, J.,

delivered the opinion of this Court:

The principal question for this Court to decide in the above case, arises on a motion to dismiss the appeal, upon the ground, that it is prayed and brought up at the instance and on the prayer of one only of the four joint defendants.

It appears from the record that the appellee instituted an action of trespass quare clausum fregit, charging the appellant, together with the three other defendants named in the appellee’s declaration, with entering certain lands called the “Anderson Farm,” of which the appellee claims he was in the lawful possession at the time of the alleged trespass. The defendants pleaded separately. Upon the trial, the jury rendered a joint verdict against all of the defendants. Judgment was entered upon this verdict, and from this judgment the appeal was taken by the appellant alone,.

The question involved in this motion, has, in our opinion, been expressly decided in Lovejoy vs. Irelan, 17 Md. Rep., 526. This Court in that case say, “there is no doubt that in a case at common law a writ of error brought by one of several defendants, could not be maintained.” The above was a case in equity, and the principal difficulty with the Court was, in applying a well established rule of law to a case in equity, and it was only by assimilating that case to a case at law that the appeal was dismissed. Since that decision, however, the law has been modified by an Act of Assembly in cases in equity, so that, in such cases, the question cannot again arise.

This view in cases at law, is fully sustained by Tidd’s Pr., 1189, 1226, and by the cases referred to by the learned judge who delivered the opinion in Lovejoy vs. Irelan.

See also the case of Williams vs. Bank of U. S., 11 Wheaton’s Rep., 415. This was a case at common law, in which Chief Justice Marshall stated, “that the writ of error must be dismissed.” “The judgment in the Circuit Court of Ohio, was a joint judgment upon a joint action for money lent, against three defendants, and the writ of error was sued out by one of the defendants in his own name only, without joining the others; that the writ of error ought to have been in the name of the three; and if the others refused to join in it, that it would deserve consideration whether the present plaintiff might not have summons and severance.”

(Decided May 25th, 1864.)

Though the last cases above referred to were adjudicated by other tribunals than those of this State, and rested principally upon the English law in reference to writs of error, we can see no distinction in principle between writs of error and the more simple mode of appeal adopted in this State in civil cases. The effect of non-joinder of defendants in writs of error, is well defined in Tidd’s Pr., 1189, and a similar mischief would follow in cases of appeal. The force of this reason is obvious, when we regard the period of time within which the law allows appeals to be taken. See Article 5, sec. 7, of the Code.

The party appealing has his remedy by summons and severance. This summons issues out of the Appellate Court in the form of a scire facias, notifying the other defendants to appear by a given day and assign errors in the judgment of the inferior Court. If the defendants fail so to do, the Appellate Court will pass an order of severance, and entertain the appeal of the party appealing. We are of opinion that the appeal in this case must be dismissed.

It may be proper to say that we have carefully considered this case upon its merits, and in. the absence of. the motion to dismiss the appeal, we should have affirmed the judgment.

Appeal dismissed..