6 Blackf. 138 | Ind. | 1842
J£ain sued Gradon and Sawyer before a justice of the peace and recovered judgment against them. One of the defendants, Gradon, prayed an appeal to the Circuit Court which was granted to him. In the Circuit Court, the plaintiff moved to dismiss the appeal because it was taken by one of the defendants only. The motion was accompanied by an affidavit stating that Sawyer was living and resided in the neighborhood. The Court overruled the motion, proceeded to try the cause, and gave judgment for the defendants.
The Circuit Court erred in overruling the motion to dismiss the appeal. There is no reason why appeals from the judgment of a justice, should be distinguished from writs of error, and in cases of the latter description it is settled by repeated adjudications, that on a judgment against several defendants, a writ of error must, be brought in all their names, if they are still living and aggrieved by the judgment. Cro. Eliz., 648; Ib., 892; 1 Strange, 233; Ib., 606; 3 Burr., 1789. If it were not so, every defendant might bring a writ of error or take an appeal by himself, and by that means prevent the plaintiff
Where all the plaintiffs or defendants to a suit do not wish to prosecute an appeal or a writ of -error, or will not unite in doing so,'any one of them may take an appeal or sue out a writ in the names of all, and if the others refuse to come in and join with him in the assignment of errors, there must be a judgment of severance as to them, after which Ke may proceed in his name alone. 6 Bac. Abr., “Summons and Severance,” E; 1 Archbold’s Pr., 232.
In the case before us, it was the privilege of either of the *defendants to appeal from the judgment of the justice, and to have had judgment of severance in the Circuit Court. As Gradon did not pursue that course, his appeal should have been dismissed.
Per Curiam.—The judgment is reversed, &c., with costs. Causé remanded,' &c.
