53 So. 746 | Ala. | 1910
This cause is submitted on its merits and on motion of the appellee to dismiss the appeal. The decree of the probate court appealed from is a joint decree against the appellant, Callie White, and Emma Green, and rendered upon a petition jointly filed by them. The present appeal is taken and prosecuted in the name of Callie White, by her guardian ad litem, alone.
“When one defendant wishes to revise a judgment rendered against himself jointly with others, he has a right to use their names for this purpose; but, if they are unwilling to join in assigning errors, they must be summoned after the case comes to the Supreme Court; and on their failure to join after such summons, an order of severance is granted, and the appellant then prosecutes his appeal separately.” — Savage & Darington v. Walsh & Emanuel, 24 Ala. 293.
“The practice in appeals under the Code, where one defendant wishes to revise a judgment rendered against himself jointly with others, should conform to the former practice under writs of error. The appeal must be sued out in the name of the defendants, after which there may be a summons and severance as to those who*412 refuse to join; and after a severance the party refusing to join will not be liable for the costs of the appeal, nor for the statutory damages on affirmance.” — Moore v. McGuire, 26 Ala. 461.
In the case of Deslonde & James v. Carter, et al., 28 Ala. 541, it is said: “In Moore v. McGuire, 26 Ala. 461, the rule is laid down that ‘when there are several defendants, against whom a joint judgment is rendered, or a joint duty is imposed by the decree of the court, they cannot sue out separate appeals.’ This is a very recent exposition of the rule, and we are satisfied with it. Under its authority, if one defendant, thus circumstanced, sues out a separate appeal, and the objection be taken, the courts will dismiss the appeal. The same case declares the proper rule of practice in such cases, namely, that the appeal shall be taken in the names of ail the defendants.”
The objection was taken in the present case by timely motion to dismiss the appeal, and the appellant declined, or at least failed, to take any steps to correct the defect. It results that the motion here must prevail, and the appeal will be dismissed. This makes it unnecessary to treat other questions in case.
Appeal dismissed.
