Donnell v. Shields, 30 N.C. 371, 8 Ired. 371 (1848)

June 1848 · Supreme Court of North Carolina

30 N.C. 371, 8 Ired. 371

EMSLEY DONNELL & AL. vs. WILLIAM T. SHIELDS & AL.

Where there are two or more parties, defendants in an action of trover, an appeal by less than the whole number of parties cannot be supported, although they pleaded severally. If the verdict is against all, the judgment must necessarily be against all for the whole sum found in damages.

The cases of Gilliam v, Hicks, 4 Dev. 217, Dunns v. Jones, 4 Dev. & Bat. 154, Stiner v. Cawthorn, 4 Dev. & Bat. 501, and State v. The Justices of Moore, 2 Ired.430, cited and approved.

Appeal from the Superior Court of Law of Guilford County, at the Fall Term, 1847, his Honor Judge Baile* presiding.

This was an action of trover brought by the plaintiffs against James M. Patterson and three other defendants, to recover damages for the conversion by them of several slaves. The defendant pleaded severally the general issue, not guilty, and upon the trial of the issues in the Superior Court of law, at Guilford, on the spring circuit of 1848, the jury found the defendants “ severally guilty,” and assessed the plaintiff’s damages to $2,048 60, and judgment was rendered that the plaintiffs recover, &c. From this judgment the defendant, Patterson, alone, appealed to the Superior Court, where the counsel for the plaintiff moved to dismiss the appeal, for the reason that the other defendants had not joined in it.

Kerr and Iredell, for the plaintiffs.

Waddell and J. T. Morehead, for the defendants.

Battle, J.

Upon the direct authority of the cases of Gilliam v. Micks, 4 Dev. Rep. 217, and Dunns, McIlvaine, and Brownley v. Jones, 4 Dev. and Bat. Rep. 154, and for the reasons therein given, which it is unnecessary for us to repeat,we are bound to allow the motion made by the plaintiffs’ counsel, and to dismiss the defendants’ appeal. It is true that the defendants, in the Court below, pleaded severally not guilty, and the jury found them severally guilty, yet the damages assessed were for one entire sum against all, as they ought to have been (¡Sir John Muydanfs case, 11 Coke’s Rep. 5. Lawfield v. Brancroft, Strapge’s Rep. 910,) and the judgment thereon was of course a joint one against all. Nor can the cases of Stiner v. Cawthorn, 4 Dev. and Bat. Rep. 501 and The State v. Justices of Moore, 2 Iredell’s Rep. 430, cited for the defendant, help him. Both those cases fully recognise the authority of Hicks v. Gilliam, and Dunns, McIlvaine and Brownley v. Jones, and are decided upon principles not applicable to them, nor to this case. The motion to dismiss the appe? I from this Court in Stiner v. Caiuthorn, was refused upon the ground, that though there were other defendants iu the County Court, yet as no motion was made to dismiss Cawthorn’s appeal from the Superior Court, and that Court did, in fact, entertain jurisdiction of the case, and gave judgment against him alone, his appeal to the Supreme Court was proper, and could not be dismissed from that Court. The other case of The State v. The Justices of Moore, was put upon the intelligible and proper ground, that the suit against the Justices, was not against them as several persons, acting as individuals, but as a corporate body, acting through the medium of a majority of its members. The judgment was therefore against them in the same capacity, and an appeal from it by a majority was in effect, an appeal by the whole body.

Per Curiam. The appeal dismissed.