Smith v. Cunningham, 30 N.C. 460, 8 Ired. 460 (1848)

Aug. 1848 · Supreme Court of North Carolina

30 N.C. 460, 8 Ired. 460

SMITH & SHUFORD vs. E. CUNNINGHAM.

Where there is a joint judgment against two defendants in the Court be. low and one only appeals, the appeal will be dismissed on motion, no matter what steps have been taken in the cause after the filing of the appeal.

The cases of Dunns v. Jones, 4. Dev. & Bat. 154, and Stiner v. Caw-thorn, 4. Dev, & Bat, 501 cited and approved.

Appeal from the Superior Court of Law of Buncombe County, at the Spring Term 1848, his Honer Judge Battle, presiding.

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 County 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 plaintiffs had waived the objection by their delay and by summoning witnesses in preparation for a trial. The court sustained the motion and ordered a writ, of procedendo to issue. From which judgment the defendant appealed to this Court.

Baxter, for the plaintiff.

N. W. Woodfin, and J. W. Woodjin, for the defendant.

Nash, J.

That one defendant cannot appeal from a joint Judgment has been considered as the settled law of this State, since the case of Hicks and Gilliam, 4th Dev. 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 the case of Dunns & Mcllvaine, against Jones, 4th Dev. and Bat. 154 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. Cawiliorn, 4 Dev. and Bat.. 501.

Per Curiam. Judgment affirmed.