E. W. Irvine instituted suit against R. H. Short and R. S. Howard, to recover from them in solido twenty-five hundred dollars.
Judgment was rendered against them as prayed for. Motion was made for a suspensive appeal, which was granted. Short alone filed a bond.
In this court Irvine moved to dismiss the appeal, on the ground that Howard was a necessary party thereto, and, having failed to file his bond, had not been made a party.
The motion was denied, on the ground that Howard not having filed his bond, thus bringing up his appeal, he and the plaintiff were appellees.
■ On the judgment rendered against him in the ease of Irvine vs. Short and Howard execution issued against Howard. He enjoins the execution thereof. His allegations are:
, First — That there is no judgment against him, because the judgment in the case of Irvine vs. Short and Howard was reversed.
Second — That the consideration on which the judgment was based was a loan of Confederate money.
. First — The judgment rendered by the district court against Howard was not reversed. He did not bring up his appeal. And we held that he Was an appellee. In the decretal part of our judgment it was ordered that the judgment of the district court against the “ defendants” be reversed. Plaintiff contends that “ defendants ” in the decree included him. This is an error. We could not include in a judgment one who was not before us.
Second — Whatever the consideration of the obligation sued on, the judgment of the district court has long ago become final, and the basis upon which it rested can not now be inquired into. Plaintiff has got himself into trouble by his own neglect, and we can not relieve him.
It is therefore ordered, adjudged, and decreed that the judgment of the district court be affirmed with costs in both courts.
Rehearing refused.