Smith v. . Cunningham

30 N.C. 460 | N.C. | 1848

This action is brought in assumpsit and commenced by warrant before a single magistrate against the defendant and one Henderson.

Judgment was rendered by the magistrate against both the defendants, and Cunningham appealed to the Country Court, from which the case was transferred under the act of Assembly to the Superior Court. In the latter court the case was continued for several terms, without any motion being made in it on either side, though it appeared that the parties had summoned witnesses, at Spring Term, 1848. The plaintiff moved to dismiss the appeal because it was taken by one of the defendants only. This motion was resisted upon the ground that the plaintiff had waived the objection by their delay and by summoning witnesses in preparation for a trial. The court (461) sustained the motion and ordered a writ of procedendo to issue. From which judgment the defendant appealed to this Court. That one defendant cannot appeal from a joint judgment has been considered as the settled law of this State since the case of Hicks v.Gilliam, 15 N.C. 217. That case has been repeatedly noticed in subsequent cases and approved. That the principle operates in many cases harshly has been felt and admitted, but the principle is considered as sound law. The objection made by the defendant cannot avail him. It was taken in Dunns v.Jones, 20 N.C. 291, and overruled. In that case the action was brought in the County Court of Franklin against one Ward and the defendant Jones. The defendants severed in their pleas, but the judgment was joint. Jones appealed and Ward refused to join him. At the ensuing term of the Superior Court, to which the appeal was returned, the plaintiff obtained an order for taking a deposition, and the cause was continued. At the next term of the Superior Court the appeal was dismissed on the motion of the plaintiff, upon the objection that it was an appeal by one defendant from a joint judgment. His Honor's judgment was sustained by the Court. This case is recognized and approved in the subsequent case of Stiner v. Cawthorn, 20 N.C. 640.

PER CURIAM. Judgment affirmed.

Cited: Mastin v. Porter, 32 N.C. 2; Jackson v. Hampton, ib., 604;Kelly v. Muse, 33 N.C. 183; McMillan v. Davis, 52 N.C. 221.

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