49 Miss. 327 | Miss. | 1873
delivered the opinion of the court:
This writ of error is presented, by all the defendants to the judgment. The statute of limitations of three years is pleaded in bar, to which one of the plaintiffs in error, replies : That they were, at the date of the commencement of the suit, at the rendition of the judgment, and now, west.' The other defendants, who are under no disability set up the same matter in bar. To the replications, the plaintiffs in error demurred.
The preliminary question thus raised, is now, alone for consideration.
Art. 9th of the statute, organizing the appellate court, Code, 1857, p. 563, gives the writ of error to ,l any party,’’ plaintiff or defendant, aggrieved by the judgment or decree. If their be several persons, parties thus aggrieved, any one of them, is entitled to the writ. Such indeed is the right at the common law. But in order to prevent a multiplicity of suits, and upon one writ to include all parties, on the question of errors in the judgment and proceedings, it has long been a settled practice that the names of all the parties against whom judgment was pronounced must be inserted in the writ; and where the writ is sued out by one party alone, he has liberty to insert the names of the co-parties in the
The effect of the statute, and the interpretation put upon it, is that one of several parties to a judgment, may take proceedings to have it reviewed, but to make the one suit final, he must take steps to compel the others, either to join with him, or withdraw altogether, which latter alternative bars them of another writ.
Writs of error may be sued out, or granted, within three years, saving to persons under disibility the like period after their disabilities are removed, Code, 1857, p. 401, art, 17; p. 400, § 12.
Either of the femes eovert, defendants to the judgment, could have in the mode indicated, prosecuted the writ of error, without the joinder of the other defendants; if so, their disability still protects them against the bar of the statute inasmuch therefore, as they had substantially a right to a separate writ of error; their disability saves them from the bar, and as to them the bar does not attach.
The rule is, if the interest is necessarily and absolutely joint, the bar of one, by the statute, is the bar of all, but if the interest be joint and several, disabilities may save one, whilst the statute would bar another. Root v. McFerrin. 37 Miss. Rep., 52.
Judgment will be for the femes oovert on the demurrer, and against the other plaintiffs in error.
