Summary
finding manager's statements made to direct blame away from his wrongdoing and onto a terminated employee could not be imputed to employer because the manager made the slanderous statements regarding the termination of an employee-at-will, about which the employer had no duty to give information to third parties two weeks after the termination
Summary of this case from Rodriguez v. SarabynOpinion
No. 32214.
April 20, 1936.
1. LIBEL AND SLANDER.
Words imputing a want of integrity or capacity, whether mental or pecuniary, in the conduct of a profession, trade, or business, are slanderous per se, notwithstanding charge may not involve criminal offense.
2. LIBEL AND SLANDER.
Store manager's statements to customers that clerk had been discharged because of shortage in store held slanderous per se entitling clerk to recover against manager, notwithstanding statements may have been made without malice.
3. LIBEL AND SLANDER.
Where party denies uttering slanderous words, proof that party uttered such words, when taken in connection with fact that no effort was made to prove truth of utterance, is sufficient evidence of malice to go to jury.
4. APPEAL AND ERROR.
Where plaintiff, in action for slander, obtained verdict, proof in behalf of plaintiff would be accepted by reviewing court as true.
5. CORPORATIONS.
Store manager's slanderous statements made about two weeks after clerk's discharge, that clerk had been discharged because of shortage in store, held not "within scope of employment," and hence manager's employer was not liable therefor.
ON MOTION TO CORRECT JUDGMENT.(Division B. June 1, 1936. Suggestion of Error of Great Atlantic Pacific Tea Co. Overruled July 3, 1936; Suggestion of Error of G.E. Hart Overruled Sept. 28, 1936.)
[168 So. 468. No. 32214.]1. APPEAL AND ERROR.
Party signing petition for appeal thereby becomes an appellant, and while not required to give bond, such party cannot become a surety on bond of any of other appellants, since he is a co-appellant.
2. APPEAL AND ERROR.
Appellant had duty to examine record to see that its contents were correct and that all proceedings were regular, and if they were irregular or incorrect, to call such fact to attention of Supreme Court, and apply either to Supreme Court or to trial court for permission to have record corrected prior to submission thereof to Supreme Court for decision.
3. APPEAL AND ERROR.
Where appeal bond executed by surety and signed by one defendant recited that both defendants were appellants and record came before Supreme Court in regular form with appeal bond operating as a supersedeas and court's attention was not directed to any defects therein, surety held estopped to rely on any defects in proceedings or to assert that defendant who did not sign bond did not authorize appeal (Code 1930, secs. 37, 758).
4. ATTORNEY AND CLIENT.
Attorney who acts for litigant is presumed to have authority to do all acts necessary to properly conduct litigation, and party denying such authority has burden to show absence thereof and is bound, as to opposite party, by any act which attorney does in regular course of practice, however improper, if done without fraud or collusion.
5. ATTORNEY AND CLIENT.
Where petition for appeal was filed jointly and severally by defendants and was signed by attorney who represented each of them in trial court and appeal bond which was signed by only one defendant recited that both defendants were appellants, defendant who did not sign bond held estopped after decision of cause from setting up want of authority in his attorney to authorize appeal (Code 1930, secs. 20, 21, 37, 38, 52).
6. APPEAL AND ERROR.
Sureties on appeal bonds, on the filing and approval thereof, make themselves parties to appeal and answerable to appellee respecting all questions of liability thereon; hence such sureties must ascertain, before bonds are signed and approved, who are actually appellants therein (Code 1930, secs. 20, 21, 37, 38, 52).
APPEAL from circuit court of Neshoba county. HON. D.M. ANDERSON, Judge.
Hugh V. Wall, of Brookhaven, and J.B. Hillman, of Philadelphia, for appellant.
The court should have granted a directed verdict in favor of the appellant for the reason that G.E. Hart, at the time that he made the remarks of and concerning appellee and the cause of his discharge as a clerk in appellant's store, was not acting for his master and was not about his master's business. The appellant had no interest in the conversation between Hart and appellee's witnesses, and when Hart spoke to the witnesses of and concerning appellee, he was not acting for his master nor about his master's business and could not bind the appellant, and could not subject appellant to damages on account of said remarks.
Newell, Slander Libel (4 Ed.), chapter 3, page 62; Farley v. Bufkin, 132 So. 86, 159 Miss. 350; Strickland v. S.H. Kress Co., 112 S.E. 30; Frazer v. N.O. G.N.R.R. Co., 130 So. 493; Courtney v. American Ry. Express Co., 113 S.E. 332, 24 A.L.R. 128; Hypes v. Southern R.R. Co., 21 L.R.A. (N.S.) 873, 17 Am. Cas. 620; Doherty v. L.B. Price Mercantile Co., 95 So. 790; Washington Gas Light Co. v. Lansden, 172 U.S. 534, 43 L.Ed. 543; 5 Thompson on Corporation (2 Ed.), sec. 5441; Fensky v. Maryland Cas Co., 264 Mo. 154, Am. Ann Cas. 1917D 963, 174 S.W. 416.
Following all of these cases, we find that if the appellee had already been discharged for several days when Hart said to appellee's witnesses that there was a shortage in the store, and that the appellee was discharged on account of said stortage, Hart was not acting about his master's business and was not actually performing any duty touching the matter in question and was not in the actual performance of any duty to his master, the appellant. The matter of discharging appellee was a closed incident and anything that Hart said afterwards was not within his authority and he was not acting for the appellant and was not acting about the appellant's business and was not binding on the master, and we think this rule is well settled by the leading authorities in the United States and by our own court in the Doherty case and Frazer case above referred to.
Lucas E. Moore Stave Co. v. Wells, 72 So. 228.
There can be no recovery in this case because the words used by Hart of and concerning the appellee, as shown by this record were not actionable per se. The most that can be said is that the words were actionable per quod.
Jefferson v. Bates, 113 So. 215, 152 Miss. 128; Black's Law Dictionary, page 887; Woodville v. Pizatti, 80 So. 491; 17 R.C.L. 272, sec. 13; Goodrich v. Hooper, 97 Mass. 1, 93 Am. Dec. 49; Sheely v. Biggs, 3 Am. Dec. 552; 36 C.J. 1150, sec. 17.
There is no imputation of crime charged in the declaration and there is no imputation of crime in the testimony.
36 C.J. 1161, sec. 27, and 1165, sec. 29; Newell on Slander Libel (4 Ed.), chapter 4, sec. 22, page 73, and sec. 200, page 249, and sec. 236, page 274; Valley Dry Goods Co. v. Buford, 114 Miss. 414, 75 So. 252.
A charge that a clerk in a store is short is not actionable per se and malice is not presumed and damage is not presumed.
Woodville v. Pizatti, 119 Miss. 85, 80 So. 491; Whitley v. Newman, 70 S.E. 686; 36 C.J. 1150-1152; York v. Mims, 200 S.W. 918; Wooten v. Martin, 131 S.W. 783; State v. Reynolds, 200 S.W. 296; 17 R.C.L. 274; 37 C.J. 23-24, 26, 35, 36-37, and 100.
Having failed to establish by a preponderance of the evidence of this case that such language was actually or must necessarily have been understood by the hearers of the language itself as imputing to appellee the offense of theft, as alleged in the innuendo, appellee wholly failed to make out a cause of action.
Fenn v. Kroger Grocery Co., 209 S.W. 885.
We submit that the recent case of Hand v. Industrial Life Health Ins. Co., 165 So. 616, is authority for our position, that the words used by Hart was not the act of appellant, as the appellant had no interest in the matter and appellee's whole theory is in conflict with the decisions of this court.
Davis v. Price, 133 Miss. 236, 97 So. 557; 6 LaBatt's Master Servant (2 Ed.), 2704.
The court erred in holding that this defendant is estopped, under the facts of this case, from setting up the want of authority of the attorneys to take any appeal in his behalf.
The obligation of the surety is accessory to the obligation of the principal and the general rule is that, unless the principal is bound, the surety is not. That the obligation of the surety cannot exceed the obligation of the principal.
21 R.C.L., sec. 27, page 974; 50 C.J. 92-93; Conn v. Pender, 1 S. M. 173; L.R.A., Complete Digest, Principal and Surety, sec. 27.
This appears to be the general rule and we submit that if the court did not have jurisdiction of Hart then there can be no judgment under the decisions against the surety, and as we read the decision in its last analysis, the court holds that unless Hart is estopped, then there can be no judgment against him, and if there can be no judgment against Hart, there can be no judgment against the surety, and we repeat, that under the decisions, as we construe them, Hart could not be estopped from now asserting that this court had no jurisdiction of him on the ground that he did not inspect the record and did not take any steps to correct it for the reason that this could only amount to silence on his part, and as we understand the rule, there can be no estoppel by silence, unless there be a specific opportunity and a real and apparent duty to speak. We submit that there was no specific opportunity and there was no real or apparent duty for Hart to speak.
There can be no estoppel unless someone is misled.
Pace v. Pace, 65 So. 273, 107 Miss. 292.
We submit that no one was misled in the case now under consideration. Appellee was not misled, because his counsel never at any time as shown by this record, considered Hart an appellant. Then, if they did not consider Hart had appealed his case, no one was misled.
Plant Flour Mills Co. v. Sanders Ellis, 157 So. 713.
We respectfully submit that if Hart was not estopped then it is clear that he did not appeal his case and if he did not appeal his case, then the court would have no jurisdiction and if the court had no jurisdiction of Hart, then there can be no judgment against the surety.
21 R.C.L. 974, sec. 27, and 975, sec. 28; Eising v. Andrews, 66 Conn. 58, 33 A. 585, 50 A.S.R. 75; McConnell v. Poor, 113 Ia. 133, 85 N.W. 968, 52 L.R.A. 312; 38 A.S.R. 712; 52 L.R.A. 187; Wilson v. Hinman, 182 N.Y. 408, 75 N.E. 236, 108 A.S.R. 820, 2 L.R.A. (N.S.) 232.
We respectfully submit that the court is in error in its holding that it was the duty of Hart to examine the records. The affidavits in the case show, and there is no dispute about it, in fact the affidavits are admitted as being true, that Hart, when he was told that it would be necessary for him to give a bond if he wanted to appeal his case, and he expressed himself to the attorney who told him that it would be necessary for him to give a bond that he did not want to appeal his case. He was not told by the attorney that he had appealed his case. He was told by the attorney that he had not appealed his case.
We submit and most earnestly suggest that the bond did not, in the light of the affidavits in this case, operate as a stay of the proceedings on the judgment as to Hart. If we are correct upon this statement, then this suggestion of errors, we respectfully submit, should be sustained.
Hirsch Bros. v. R.E. Kennington, 155 Miss. 242, 124 So. 344.
The court cites the case of Grand Court of Colanthe v. Downs, 98 Miss. 740, 53 So. 417, from which we quote: "It is presumed that an attorney, assuming to represent a party, is authorized to do so. . . ." We have not quarrel to make with the court about that pronouncement. In fact, we agree that that is the universal holding, but we disagree with deference with the court that the presumption prevails over the facts. We submit that it is a universal rule that all presumptions give way to facts. Not only is this true in legal proceedings, but it is true in other things.
Those who do not join in the appeal cannot be required to do so, and although summoned to join, they can only do so by giving bond with surety as if they had appealed in the first instance, as required by section 45, Code of 1906, section 20, Hemingway's Code 1927, which is the same as the present section 24, Code of 1930.
Wilkinson v. Love, 149 Miss. 535.
We say that Hart did not appeal his case and he was not an appellant. Never at any time is there one word in this record from any paper signed by Hart to show that he ever intended to appeal and in truth and in fact the record now shows that he never intended to appeal his case.
We do not think this court is helpless in a situation like this when it is admitted that if the court can consider the affidavits, then Hart is not before the court.
Sections 3376 and 3377, Code of 1930; McInnis v. Simmons, 139 So. 872; 4 C.J. 1246, sec. 3311; Cotton v. McGehee, 54 Miss. 621; 11 Cyc. 701, sec. 3.
This appears to be the general rule and many authorities are cited that all courts have the right, when their attention is called to it, to determine their jurisdiction and we submit in this case, as shown by the affidavit, Hart did not appeal his case and the court had no jurisdiction of Hart, and if the court has no jurisdiction of Hart it has no jurisdiction to enter a judgment against the bond of the Great Atlantic Pacific Tea Company.
Butler Snow, of Jackson, for appellant.
There are two ways in which the jurisdiction of this court is acquired over an appellant. The party desiring the appeal may invoke and submit himself to the jurisdiction of this court by perfecting his appeal from the judgment complained of in the lower court within the time and in the manner required by the statutes, or any one of the parties to a judgment or decree may appeal therefrom, and it then becomes the duty of the clerk to issue a summons for the party not appealing to unite with the appealing party in the appeal. And, if the party so summoned desires to invoke and submit to the jurisdiction of this court and to unite or join in the appeal, he can only do so by giving bond with sureties as if he had appeared in the first instance without a summons.
Wilkinson v. Love, 149 Miss. 523.
The giving of the bond (where required) is jurisdictional. In such a case, the Supreme Court acquires no jurisdiction of an alleged appellant although the transcript of the record is on file.
Hardaway v. Biles, 1 S. M. 657; Wofford v. Williams, 109 Miss. 847; Calcote v. Stampley, 114 Miss. 887.
It is definitely settled in this state that the appeal is perfected only on the filing and approval of the bond, where a bond is required.
Adams Lbr. Co. v. Stevenson, 89 Miss. 679; Chambliss v. Wood, 84 Miss. 209; McAllister v. Richardson, 101 Miss. 132; Farish v. Davis, 124 Miss. 711; Wofford v. Williams, 109 Miss. 847.
The motion for a new trial in Hart's name, the order of the court purporting to grant Hart an appeal, and the petition in Hart's name for an appeal, accomplished no purpose in the perfection of an appeal by Hart and gave this court no jurisdiction of Hart.
The most that can be said is that, by virtue of the appeal bond, the court apparently has jurisdiction of Hart. If the affidavits may be received and considered, this apparent jurisdiction vanishes into thin air, and it is made manifest that this court in fact has no such jurisdiction.
The question then is whether this court has the jurisdiction and power to inquire into the fact of whether it actually has jurisdiction of Hart in this case. That is to say, whether it has jurisdiction to inquire into its jurisdiction.
This court has, and from time immemorial has exercised, many powers incident to its jurisdiction.
Ex parte Prewitt, 106 Miss. 63; Hall v. Hall, 77 Miss. 743; Brooks-Scanlon Co. v. Stogner, 114 Miss. 736; Madison County v. Canton, 171 Miss. 547; Adams v. Carter, 92 Miss. 597; Kemper County v. Neville, 95 Miss. 56; McInnis v. Simmons, 162 Miss. 606; Planters Ins. Co. v. Cramer, Hume McCown, 47 Miss. 200; In re Steen, 160 Miss. 874.
There is no case in Mississippi holding that this court is without jurisdiction to determine whether Hart is legally before it as an appellant.
The same principle that gives relief in cases of fraud gives relief in case of accident and mistakes.
Brown v. Wesson, 114 Miss. 216; Robertson v. Aetna Life Ins. Co., 134 Miss. 298.
This court has held that the unauthorized acts of Messrs. Wall and Hillman in this case in filing the motion in Hart's name for a new trial, obtaining an order purporting to allow him an appeal, and filing the petition in Hart's name for an appeal, although done in the utmost good faith was not binding on Hart. And, if Hart's name was included in the appeal bond, through error or otherwise, without his knowledge or consent, that would likewise not bind Hart however honest and sincere the motives of the party or parties so included his name in the appeal bond might have been.
Hirsch Bros. v. Kennington Co., 155 Miss. 242; Dial v. Rector, 12 Tex. 99; Watson v. Watson, 4 Rand Rept. (Va.), 611; Ikerd v. Borland, 35 La. Ann. 337; Miller v. Arnold, 65 Ind. 488; Harding v. Durant, 36 App. (D.C.) 238; Sivley v. Sivley, 96 Miss. 134.
It would seem clear that if we are correct in our interpretation of the affidavits, it was not the duty of Hart to examine the record to see that it was correct for any purpose whatsoever, and equally clear, that in the absence of such a duty, there can be no estoppel as against Hart.
The theory of estoppel by silence rests upon the principle that it would be a fraud for a party to assert what his previous conduct had denied when on the face of that denial others have acted.
Izard v. Mikell, 173 Miss. 770; Staton v. Bryant, 55 Miss. 261; Davis v. Bowmar, 55 Miss. 671; 10 R.C.L. 692.
And estoppel cannot be predicated upon the failure of one to act and speak when such a one is ignorant of the facts about which he should speak. Silence in the absence of knowledge does not work an estoppel.
Houston v. Witherspoon, 68 Miss. 190; Davis v. Kriger, 69 Miss. 39; Thomas v. Romano, 82 Miss. 256; Yazoo Lbr. Co. v. Clark, 95 Miss. 244.
There was nothing to prevent appellee from taking out an execution as against Hart. It is perfectly clear from the record that appellee and his attorneys did not consider that Hart was a party to the appeal.
It is perfectly well settled that no estoppel will arise unless injury befall him as against whom the estoppel is asserted.
Davis v. Bowmar, 55 Miss. 671; Scottish-American Mortgage Co. v. Bunckley, 88 Miss. 641; Staton v. Bryant, 55 Miss. 261; Hart v. Livermore Foundry Machine Co., 72 Miss. 809; 10 R.C.L. 697.
The burden of proof is on the appellee to show that he will be injured and damaged if the true situation is now permitted to be known.
21 C.J. 1250, 1251.
The obligation of the surety is accessory to the obligation of the principal and the general rule is that, unless the principal is bound the surety is not bound. That the obligation of the surety cannot exceed the obligation of the principal.
21 R.C.L. 974; 50 C.J. 92-93; Conn v. Pender, 1 S. M. 173; L.R.A., Complete Digest, Principal and Surety, sec. 27.
As to the motion of Hart to set aside judgment, remand the case to the docket and for leave to be heard on the merits, we appreciate the fact that the request contained in the motion is somewhat unusual. We submit that, if it is denied, an injustice may result to Mr. Hart. That the court has power to, and in a proper case in the exercise of its discretion may, grant the request, is clear.
Brown v. Sutton, 158 Miss. 78; Brown v. Sutton, 158 Miss. 73; National Box Co. v. Bradley, 171 Miss. 16; Tardy v. Rosenstock, 118 Miss. 720.
The court has held that Hart is here by estoppel; that the court acquired jurisdiction of him, under that holding, is not here questioned. So technically speaking, Hart perfected his appeal and has had his day in this court, but actually he has not. The affidavit attached to the motion shows clearly that he had no communication with anyone about the perfection of this appeal until about December 21, 1935, when one of the attorneys of the Great Atlantic Pacific Tea Company told him that company had appealed its case to the Supreme Court and that if he, Hart, desired to appeal, it would be necessary for him to make an appeal bond or to pay the transcript fee and make bond and make deposit for costs as contemplated by the statute. That he advised said attorney in the conversation referred to that he did not want to appeal the case and declined to make an appeal bond or make deposit for costs. This affidavit shows clearly that he was not advised by said attorney that a motion for a new trial in his behalf had been made; that notice had been given to the stenographer in his behalf or a petition for appeal in his behalf had been filed or that his name had been inserted through error or otherwise in any appeal bond. That he did not know or suspect that his name was in the body of any appeal bond and did not know or suspect that he was suspected by any person or attorney as a party to the appeal or that anyone was asserting or claiming that he was a party to the appeal until after the court rendered its first opinion herein.
We think that, under the showing made, any negligence of Hart in filing an assignment of error and brief on the merits is clearly excusable and that the record shows due diligence on his part. It is shown very clearly that as soon as he received notice that it was being suggested and claimed that he had perfected an appeal, he took prompt steps to make the true situation known.
To grant the motion works no hardship upon appellee. Under the statutes and the rules of the Supreme Court, when Hart failed to file an assignment of error and brief, appellee might have had the appeal dismissed as to Hart and, indeed, the court on its own motion might have dismissed the appeal as to him.
Rule 20, Supreme Court.
Reily Parker, of Meridian, and Richardson Sanford, of Philadelphia, for appellee.
It is the contention of the appellee that the language used in these various statements was directed to the unfaithful conduct on the part of the appellee in the performance of his duties owing to the appellant as an employee, and that it was then being charged that the appellee was wrongfully and improperly taking the money belonging to his employer, and by reason of such taking, there was a shortage in the accounts of the store; and, that in order to ascertain the true and correct meaning of the language used, consideration must be given to the surrounding facts and circumstances in order to determine whether or not such language is actionable, and such is the rule stated by our court.
Wrought Iron Range Co. v. Boltz, 86 So. 354, 123 Miss. 550; Interstate Co. v. Garnett, 122 Miss. 373.
In charging the appellee with causing a shortage in this store, the appellant charged that the appellee had wrongfully taken the appellant's money, or its goods.
W.T. Farley v. Bufkin, 132 So. 86; Interstate Co. v. Garnett, 122 So. 373.
It is the contention of the appellee in this case that the language used was clearly actionable, and that the court would have been justified in holding as a matter of law, under the facts in this case, that the language was actionable, but the court submited this question to the jury and there was no error in so doing.
Tribble v. Y. M.V.R. Co., 60 So. 3, 103 Miss. 1; Wrought Iron Range Co. v. Boltz, 86 So. 354; Doherty v. L.B. Price Mercantile Co., 95 So. 790, 132 Miss. 39; W.T. Farley v. Bufkin, 132 So. 86; Hundley v. Louisville Nashville R. Co., 88 Am. St. Rep. 298; Grand Union Tea Co. v. Lloyd, Ann. Cas. 1918C 1118.
We do not think that the doctrine of privilege extends to the language used in this case, as applied to all or part of the instances complained about, but this feature is eliminated because the case was tried and submitted to the jury as a privileged communication.
The court, at the request of the appellant in four instructions, directed the jury to find for the appellant, unless the statements made were made with malice; and, since the protection, or lack of liability, due to privilege, does not afford any defense, where the statements are made with malice, then the question of privilege is eliminated from this case, if there be malice.
N.O. G.N.R. Co. v. Frazer, 130 So. 493.
In the case at bar, not only does the record show lack of probable cause, but shows a consciousness of falseness and wilful and deliberate misstatement of the facts.
White v. Nichols, 11 L.Ed. 591; Pallasky v. Minchener, 9 L.R.A. 102; Louisiana Oil Corp. v. Renno, 157 So. 705; Interstate v. Garnett, 122 So. 373; N.O. G.N.R. Co. v. Frazer, 130 So. 493.
In the present case, the appellant does not defend on the ground of privilege; it does not claim the truth as the justification; it does not claim a belief in the truth as a justification, but admits that the charge, if made, was falsely made, and knowingly falsely made, and the protection afforded by the doctrine of privilege does not extend to the facts revealed by this record.
Louisiana Oil Corp. v. Renno, 157 So. 705.
The party in full charge and control of the Great Atlantic Pacific Tea Company's business at Philadelphia, Mississippi, discharged the appellee as an employee of this company, and the statements thereafter made had reference to this discharge, and were made while in the transaction of the business as manager for his master.
N.O. G.N.R. Co. v. Frazer, 130 So. 493; Hardoncourt v. North Penn. Island Co., 74 A. 243; Manion v. Jewel Tea Co., 160 N.W. 767; Neely v. Payne, 89 So. 669; Armour Creameries v. Bowie, 163 So. 543; Tribble v. Y. M.V.R. Co., 60 So. 2; Valley Dry Goods Co. v. Buford, 75 So. 252, 114 Miss. 414; Louisiana Oil Corp. v. Renno, 157 So. 705; I.C.R.R. Co. v. Irby, 35 So. 873.
Reily Parker, of Meridian, for appellee.
This record reveals that the two defendants, acting jointly, petitioned the circuit clerk to grant an appeal from the judgment involving this cause, and specially pointed out that, in so doing, they were acting under sections 20 and 21 of the Code of 1930, and there is no contention that this petition was false in any way.
The bond filed in this case, as shown above, was not signed by G.E. Hart; but, in so far as the record, as made, is concerned, when this cause was called before this court the record required that the judgment to be entered would be governed by section 37 of the Code of 1930.
There was no suggestion that any of the features revealed by the record were untruthful or inaccurate, but it is now contended that something different should be done from what the present record requires, because the makers of this appeal intended something different.
In the case of Wilkinson v. Love, 149 Miss. 523, 115 So. 707, it was held that where parties were not before the court, and had not perfected the appeal, and the case was decided on the record, that this could not be changed by showing that they intended to make a different record than the one made.
Liles v. May, 63 So. 217; Union Motor Car Co. v. Cartledge, 97 So. 801; U.S.F. G. Co. v. Jackson, 86 So. 456; Tardy v. Rosenstock, 80 So. 1.
Earl Richardson, of Philadelphia, for appellee.
The supersedeas appeal bond was executed by the Great Atlantic and Pacific Tea Company, one of the principals, and the National Surety Corporation as surety. G.E. Hart was included in the bond by a condition therein that he would abide by the judgment of the Supreme Court, and satisfy any judgment rendered by the Supreme Court.
Judgment should be rendered against G.E. Hart and the National Surety Corporation, surety on the appeal bond.
The Supreme Court cannot consider the affidavits filed.
I submit that the parties to this cause and this court are bound by the record as filed in this court. It is a settled rule of this court that it cannot and will not consider affidavits or other evidence or matter not made a part of the record in the trial court. This court acts and must act only on the record as it is certified to by the clerk of the trial court. This record cannot be varied, altered or amended by affidavits or other evidence or matter dehors the record.
Brown v. Sutton, 158 Miss. 78; Shelby v. Barns, 148 Miss. 217; Y. M.V.R.R. Co. v. Levy and Lyons, 141 Miss. 196; Carrier Lbr. Mfg. Co. v. Boxley, 103 Miss. 489; Lyles v. May, 105 Miss. 807; Denson v. Thigpen, 114 Miss. 62; National Box Co. v. Bradley, 157 So. 92; Gulf Coast Stevedoring Co. v. Gibbs, 124 Miss. 188.
I contend that it was not necessary that Hart should sign the bond as one of the appellant principals; that even though Hart did not sign it, the bond is sufficient under the statute so as to bind the surety upon the affirmance as against the appellant Hart, because Hart certainly did everything else required by statute to perfect the appeal.
Section 37, Code of 1930; Hudson v. Gray, 58 Miss. 589; Avant v. Marquette, 109 Miss. 835; Wise v. Cobb, 135 Miss. 673.
I am sure that this court will not let G.E. Hart have the benefit of an appeal to it and then permit him to reject this court's findings because they are unfavorable so as to leave the surety on the appeal bond without liability. I submit in the absence of any statute that, if such were the case, under the terms and conditions of the bond, the National Surety Company is liable, judgment should be entered against it.
State ex rel. Rice v. Terry, 167 Miss. 558.
The conditions of the bond were such that G.E. Hart got the benefit of an appeal to this court and after getting that benefit, neither he nor the surety on the appeal bond can repudiate it so as to relieve the surety.
State ex rel. Rice v. Terry, 167 Miss. 558; Treas v. Price, 167 Miss. 121.
Reily Parker, of Meridian, and Watkins Eager, of Jackson, for appellee.
The record on appeal is binding upon this court.
The motion for a new trial being overruled as to each of them, separate petitions for appeal were filed by each of the defendants. An appeal bond is then given, which operates to move the entire record to this court as to each of the defendants. These facts are conclusive. The judgment being reversed only as to one of the appellants, necessarily, judgment should be entered against the remaining appellant, and the surety on his appeal bond.
This is not a case where an original proceeding was initiated without the consent of the client. In the present case, with full knowledge and consent of Hart, counsel conducted the defense, made a motion for a new trial, filed a petition for an appeal, and then such counsel proceeded to procure a bond on behalf of each of the defendants in the lower court, secured the approval thereof, and perfected the appeal for each of the defendants in the court below by transmitting to this court the entire record, with the original appeal bond.
Nowland v. Sartorious, 46 Miss. 55; Weems v. Howell, 122 Miss. 342, 84 So. 249; Hirsch Bros. Co. v. Kennington, 124 So. 344, 155 Miss. 244; Hurst v. Gulf States Creosoting Co., 141 So. 346, 163 Miss. 512.
The apparent conflict in authorities is based upon the failure to draw a distinction between a suit initiated originally without the knowledge or consent of the client, and some procedural step taken in course of a law suit, initiated with the consent of the client, or where a defense is undertaken by the consent of the client.
In the present instance the authority of counsel to represent Mr. Hart in the circuit court is unquestioned. The authority of counsel to file a motion for a new trial, to file a petition for appeal on the part of Mr. Hart is not questioned. The authority of counsel to file an appeal bond, which was filed, has never been questioned. We say, if the court please, that appellee Hart is not in a position to question the authority of counsel to take such steps as were taken, subsequent to the rendition of the final judgment in the case.
Surety is bound by and estopped to deny the recitations contained in the bond, and at all events judgment should be entered against it.
Hanerstein v. Gillespie, 73 Miss. 742; Fitzgerald v. Williams, 101 So. 370, 136 Miss. 250; Furst v. Pease, 52 So. 257, 97 Miss. 468; Schneider v. Berry, 157 So. 91, 171 Miss. 89.
The motion of G.E. Hart was not filed until after appellant had filed and there had been overruled a suggestion of error, and was not filed until after the adjournment of the term of court at which the final judgment was rendered.
Rule 14 of the Supreme Court; McIntosh v. Munson Road Machinery Co., 145 So. 731, 167 Miss. 546; Bates v. Strickland, 103 So. 432, 139 Miss. 636; Evans v. King-Peoples Auto Co., 99 So. 758, 135 Miss. 194; Beard v. McLain, 78 So. 184, 117 Miss. 316; Adams, State Revenue Agent, v. Evans, 19 So. 934, 75 Miss. 886.
This court can deal only with the record before it. There was no application to the court below for a correction in the record.
Brown v. Sutton, 158 Miss. 73, 78; National Box Co. v. Bradley, 171 Miss. 16; Tardy v. Rosenstock, 118 Miss. 720.
Mr. Hart, the appellant, is not in position to say that he did not know that he had appealed, that he never heard of the appeal. He is bound by the action of his counsel, is charged with notice of what they did, and in the eyes of the law has knowledge that his appeal was perfected.
Having perfected his appeal, he did not prosecute the same. He did not file an assignment of error, nor brief, and therefore, the only judgment which could have been rendered against him was rendered. It was mandatory on the court to render a judgment of affirmance against the appellant Hart and the surety upon his appeal bond.
Argued orally by Hugh V. Wall and George Butler, for appellant, and by Marion W. Reily, and W.H. Watkins, Sr., for appellee.
Appellant company operates a large number of grocery stores throughout the country. One of these is at Philadelphia in this state. Appellant Hart was the manager of this store. Appellee was a clerk therein, and had been for several months. The superior or district officers of the company were claiming that there was a shortage in this particular store. On or about November 18, 1934, appellee was discharged, and about ten days or two weeks later four parties went to the store and asked why appellee was discharged, and the manager replied that there was a shortage in the store and that appellee had to go on account of the shortage.
Appellee sued for slander, and, on the trial of the case, the local and district managers both testified exonerating appellee from any responsibility concerning the alleged shortage; the manager denied ever having made any such charge; and it is argued that if such charge were made, it was not slanderous per se and was without malice, all the parties being entirely friendly. Words imputing a want of integrity or capacity, whether mental or pecuniary, in the conduct of a profession, trade, or business are slanderous per se. Farley v. Bufkin, 159 Miss. 350, 355, 132 So. 86. A clerk in a mercantile store is within this definition; and when only one clerk in a particular store has been discharged, a statement that he was discharged because of a shortage in the store is equivalent to an assertion that he was the particular person responsible for the shortage. And the shortage need not be one involving a criminal offense, as appellant has so earnestly argued. It is sufficient when a profession, trade, or business is concerned that the charge imports an unfitness in capacity. And when a party denies having uttered the slander, proof that he did, when taken in connection with the fact that no effort is made to prove the truth of the utterance, is sufficient evidence of malice to go to the jury. Louisiana Oil Corp. v. Renno, 173 Miss. 609, 157 So. 705, 98 A.L.R. 1296. And particularly so in this case, because the jury was justified in finding from the evidence that the shortage, not at any time large, was that of the manager himself and that he was making the charge against appellee to distract attention from himself. The liability of the manager personally is entirely clear, and the judgment as to him is affirmed.
After mature consideration, we have concluded that the appellant tea company is not liable. Taking the proof in behalf of appellee, plaintiff, as entirely true, as is proper because of the verdict, this proof is that the discharge of appellee had occurred about ten days or two weeks before the uttering of the alleged slander, and that appellee's discharge had for and throughout said twelve days been a completed and closed incident, so far as Hart's legitimate official duties thereinabout were concerned. Strickland v. S.H. Kress Co., 183 N.C. 534, 112 S.E. 30; and see, also, Courtney v. Am. R. Exp. Co., 120 S.C. 511, 113 S.E. 332, 24 A.L.R. 128. The alleged slander was not so closely connected with the discharge in point of time that it may be said to be "a part of the res gestae pertaining to the discharge." New Orleans Great Northern Railroad Co. v. Frazer, 158 Miss. 407, 421, 130 So. 493, 497; Scott-Burr Stores v. Edgar (Miss.), 165 So. 623.
So far as the record shows, appellee had no contract with the appellant company for any fixed period or term of employment. It was therefore within the lawful right of appellant company to discharge appellee at any time it chose to do so, and for any reason it might think sufficient, or even for no reason at all. And having that lawful right, it was none of the lawful business of any third person as to why the discharge was made, and, consequently, was of a matter about which appellant company owed no duty whatever to give any information to any third person.
And since the incident of discharge was of a matter which the corporation was under no duty, and had no occasion in the furtherance of its business, to discuss with third persons, it must logically follow that any agent or employee of the corporation, in discussing it with any third person, was acting outside of and beyond any duties owed by the corporation and beyond that which was in the furtherance of its business, and therefore was beyond and outside of the duties which the employee or agent owed to the corporation to do, and for the same reason was outside of and beyond any duties which the employee or agent was impliedly authorized to perform for the corporation.
It must follow upon equal legal logic that when the agent, Hart, discussed this matter with outside parties, his actions were purely voluntary on his part, and had nothing actually to do with his employment, and whether his statements were false or slanderous did not in a legal sense concern the master. In other words, the agent was not about the master's business when he uttered the words imputed to him. See Moore Stave Co. v. Wells, 111 Miss. 796, 797, 72 So. 228. And we are leaving aside that the manager was perhaps serving his own personal interests, as we have heretofore mentioned. The alleged slander was, so far as the corporation was concerned, as if appellee had never been an employee of appellant company, and had never had any business relations with it whatever; and certainly none will contend that because a slander is uttered by a store manager against a particular person having no connection with the business of the corporation, the company is liable. The rule of respondeat superior has no such universal application as that. The case is not nearly so strong against the principal as Craft v. Magnolia Stores, 161 Miss. 756, 138 So. 405, or Martin Bros. v. Murphree, 132 Miss. 509, 96 So. 691.
We are, of course, not holding that merely because an employee has been discharged, and the discharge within itself is a completed event, this will render any slander subsequently uttered by agents of the corporation a purely personal matter of the agent, with no responsibility on the part of the principal, especially when the slander is by a general corporate agent; but a case to come within the rule is when the slander is nevertheless uttered in the furtherance of the master's business, and within the scope of the agent's duties and authority at the time, as is illustrated by the recent case, La. Oil Corp. v. Renno, 173 Miss. 609, 157 So. 705, 98 A.L.R. 1296; but there are no facts here substantially sufficient to bring this case within the rule applied in the Renno Case, and those of similar principle.
It is urged that the jury was authorized under the evidence to infer that the slander was uttered in the furtherance of the business of the master, in that the slander was done to prevent appellee from obtaining employment in a competitive store and from taking away customers to the other store. An argument along this line in its substantial aspects was made in Hand v. Ins. Co. (Miss.), 165 So. 616, but was held by the court not to be sufficient. And it is said that if the friends of appellee were not furnished an explanation for his discharge, they would, in the absence of such explanation, go elsewhere to trade, and that it was for this reason that the slander was uttered. We cannot conceive how a jury of reasonable men would suppose that a slander uttered against a friend of customers would be thought by a sensible person to be a means of holding those friends as customers; and, besides, so far as concerns the argument last stated, the principal ought not to be held to an anticipation of an action on the part of an agent so devoid of common sense as that would be. Compare Hand v. Ins. Co., supra.
Affirmed in part, and in part reversed.
On a former day of this term of court, we considered and decided the above case on the record sent up from the court below, and held that the Great Atlantic Pacific Tea Company was not liable for the injury complained of, but that G.E. Hart, the other defendant and appellant on the record, was liable, and that the appeal bond given was liable for the judgment rendered, together with the ordinary consequences of costs of the appeal and damages. 167 So. 637. After the decision mentioned was announced, but before the judgment was entered on the minutes of the court, the attorneys representing the appellant filed affidavits with the clerk of this court stating that the defendant G.E. Hart had not appealed and had not authorized them to appeal in his behalf, and an affidavit was filed as from G.E. Hart to like effect. These affidavits, which were filed after the decision of the case, also showed that the defendant G. E. Hart had been represented by attorneys representing the Great Atlantic Pacific Tea Company in the trial of this cause in the court below, but without compensation, and that they had been authorized to represent said Hart in the court below.
A judgment was rendered in the court below against the tea company and G.E. Hart, in favor of E.C. Majure, on October 30, 1935.
Motions for a new trial were separately filed by the tea company and G.E. Hart, which motions were signed by the same attorneys. Separate orders were entered as to each of the defendants overruling the motions, in which the court allowed an appeal with supersedeas.
On November 1, 1935, after the rendition of the judgment on October 30th, and during the same term of court, a joint petition for appeal was filed by the tea company and G.E. Hart, the same being signed by the attorneys who had represented the defendants in the court below.
A notice to the stenographer in writing signed by one of the attorneys representing both defendants in the court below, and who represents the appellant here, was given on behalf of G.E. Hart. stating that an appeal was desired by G.E. Hart. which notice was filed with the clerk. A separate notice to the stenographer was filed by the attorneys on behalf of the Great Atlantic Pacific Tea Company et al.
On November 6, 1935, a joint appeal bond was signed by the tea company, with the National Surety Company, reading as follows:
"We, the Great Atlantic Pacific Tea Company, a corporation, and G.E. Hart, an individual, principals, hereby agree and bind ourselves to pay to E.C. Majure the sum of $11,000.00, the payment of which we bind ourselves, our executors and our assigns firmly by these presents. The conditions of the foregoing obligation are such that the above named E.C. Majure sued the above named principals in the circuit court of Neshoba County for slander, and obtained a verdict against them for the sum of $5,500.00, and the above named principals, the defendants in said cause, have appealed said cause to the supreme court of the State of Mississippi. Now, therefore, if the above named principals, the Great Atlantic Pacific Tea Company and G.E. Hart, shall well and truly abide by the decision of the supreme court of State of Mississippi, and shall pay any and all obligations as directed by the said supreme court, and shall satisfy any judgment rendered by the supreme court, then and in that event, this obligation shall be null and void, otherwise, it will remain in full force and effect. Given under our hands this the 6th day of Nov., 1935," which bond operated as a supersedeas.
The record came up to this court regular in form with said appeal bond operating as a supersedeas, and the cause was submitted here on briefs, and the attention of this court was not directed to any defects therein, nor was any proceeding taken at any time before the submission and decision of the cause to correct the record in any respect. By section 37, Code of 1930, it is provided, as follows: "Appeal-bonds shall be sufficient if signed by one or more of several appellants, with sureties as required by law, and in case of the affirmance of the decree or judgment complained of, the judgment of affirmance shall be entered against all the appellants in the same manner as if all had signed such bond; but if the decree or judgment be affirmed as to some and reversed as to others of said appellants, the judgment of affirmance shall be entered only against those as to whom it is affirmed, and the sureties on the appeal-bond."
From the statement of the case at bar, it will be seen that the appeal bond given was sufficient to bring the entire record and the judgment of the court below before us as to the tea company and G.E. Hart for review. It was unnecessary for Hart to sign the appeal bond in order to get the benefit thereof. He was joined with the appellant in the bond, and subsequently no proceeding or notice to G.E. Hart to join in the appeal was required. The appellee was under no duty to have Hart brought in as an appellant. The judgment, both as to Hart and as to the tea company, was a supersedeas, and the appellee could not issue execution upon the judgment rendered in his favor against Hart.
By section 758, Code of 1930, it is provided that when a bond, or obligation of any kind shall be executed in any legal proceeding, it shall inure to the person to whom it is designed by law as a security, and be subject to judgment in his favor, no matter to whom it is made payable, nor what is its amount, nor how conditioned, and the persons executing such bond shall be bound thereby and shall be liable to the judgment or decree on such bond, as if it were payable and conditioned in all respects as prescribed by law, if such bond had the effect which a bond conditioned as prescribed by law would have had.
Where a party has signed a petition for appeal, he has made himself an appellant, and while not himself required to give bond, he cannot become a surety on the bond of any of the other appellants, since he is a coappellant. Hudson v. Gray, 58 Miss. 591.
The surety company having executed a bond reciting that the Great Atlantic Pacific Tea Company and G.E. Hart were appellants, and having contracted to pay same in case the appeal was not successful, is in no position now to say that Hart had not appealed. It is estopped to contend contrary to the stipulations in its bond and the recitals therein, as against appellee, Majure. Hauenstein v. Gillespie, 73 Miss. 742, 19 So. 673, 55 Am. St. Rep. 569, Fitzgerald v. Williams, 136 Miss. 250, 101 So. 370, and Furst v. Pease, 97 Miss. 468, 52 So. 257, in which the court said that: "The court below committed no error in charging the jury peremptorily to find a verdict for the appellee, Pease. In view of the recital in the forthcoming bond executed by Furst, admitting possession of the property sued for, he will not be heard to deny that he had possession of it at the time of the institution of the replevin suit and the service of the writ. The recital in the forthcoming bond operates as an estoppel upon him to deny the possession of the property. It is an admission, in most solemn form, of the possession of the property by him."
See, also, Schneider v. Berry, 171 Miss. 89, 157 So. 91, where the court said that: "The giving of the bond was an admission of the possession of the property and was equivalent to an admission that the property was in district No. 1 in which the writ issued and was returned. Fitzgerald v. Williams, 136 Miss. 250, 101 So. 370; Furst v. Pease, 97 Miss. 468, 52 So. 257."
It was the duty of the appellant G.E. Hart to examine the records to see that its contents were correct and that all the proceedings were regular, and if they were irregular or incorrect, to call same to the attention of this court in an appropriate way to the defects in the record, and apply either to this court, or to the court below, for permission to have the record corrected prior to the submission to this court for decision.
See Union Motor Car Co. v. Cartledge, 133 Miss. 318, 97 So. 801, on the suggestion of error, where it is said that: "It is the duty of the appellant in cases appealed to this court to see that the record certified by the clerk is correct, and, if not correct, to take steps to perfect it before submission for decision, and the court, after decision, will not on suggestion of error decide between conflicting certificates of the clerk; and where the original record shows the judgment appealed from to have been rendered and entered in vacation, the court will not consider certificates of the clerk that it was entered on the minutes in term time."
In Brown v. Sutton, 158 Miss. 78, 121 So. 835, there was an elaborate discussion of this point, and again we held that corrections of the record could not be made after submission for decision, and that a certified record filed for appeal, if a true transcript of record in the hands of the clerk, cannot be impeached in the appellate court, and cannot be altered by evidence of matters de hors the record.
The matter was further discussed in the case of National Box Co. v. Bradley, 171 Miss. 15, 154 So. 724, 157 So. 91, 92, 95 A.L.R. 1500, where Judge GRIFFITH, speaking for the court, said that: "Section 726, Code 1930, furnishes a simple and adequate method for the correction of the court reporter's transcript of the trial proceedings, and if counsel fail to avail of that simple method, a valid excuse should be offered as a predicate for a petition to correct the record after the transcript has been filed in this court. And, in any event, the application for the correction should be made before the submission of the case to this court," citing Brown v. Sutton, supra. "But this petition to correct the transcript was not presented in the trial court until the case had been decided by his court. It would be intolerable that applications by either party to correct the record should be entertained after decision by this court; and it has been expressly decided that such applications after decision here are too late. Ross v. McIntyre, 53 Miss. 133; Union Motor Car Co. v. Cartledge, 133 Miss. 318, 333, 97 So. 801."
It is manifest from these decisions that the surety company, in the case at bar, cannot now set up and rely upon any defect in the proceedings, or the alleged statement that G.E. Hart had not authorized an appeal. The bond operated to stay the proceedings on the judgment as to Hart and the tea company, and judgment must be rendered here on this bond.
Can Hart set up that the appeal was not authorized under the facts contained in this record?
It is true that attorneys have no right to appeal on behalf of clients after the rendition of judgments in the court below without authority from clients; but, may not a party who has employed an attorney be estopped from setting up want of authority in such attorney to take an appeal, where such attorney has conducted the trial in the lower court and has taken numerous steps in the client's behalf which would promote his interest in prosecuting an appeal?
It will be seen from a statement of the case at bar that the record shows that the petition for appeal was filed jointly and severally by the tea company and G.E. Hart, and was signed by the attorney representing each of them in the trial in the court below, and that notice was given to the stenographer by such attorney to transcribe his notes of evidence in the case on the appeal "for us." All of these steps were taken and an appeal bond for Hart and the tea company was given, and so the record stood, when on or about the 21st day of December, 1935, after the appeal was purported to be perfected, Hart was notified that the attorneys had prepared the case by giving the necessary notice and petitions for appeal, etc. Had he examined the record thus prepared, he would have seen and known that his attorneys, or those who had been authorized to act for him, had taken action prejudicial to the interest of the appellee by which the bond operated as a supersedeas, and no execution could be issued, and thus ascertaining was not Hart under duty to act promptly to give notice to the attorneys conducting the litigation that they had acted for him without his authority, and to take the proper steps to have the appeal as to him nullified, and the record corrected so as to show that he had not, in fact, appealed? May a party, in this situation, sit silently by and let the proceedings operate prejudicially to his adversary? Section 20, Code 1930, provides that, in order to obtain an appeal from any judgment or decree, the litigant shall petition, in writing, the clerk of the court where the judgment or decree was rendered. Section 21, Code 1930, sets forth the provisions of such petition for appeal, and section 52, Code 1930, provides that summons to answer such appeal shall be served by the sheriff of the proper county on the appellee, or his attorney in fact or of record, ten days before the time it is returnable. This section shows that the attorney who has been employed in a case, or made the agent of the appellee for the service of process, is recognized as the attorney on an appeal. Section 38, Code 1930, authorizes an appeal on behalf of a corporation by attorneys in the name of the corporation.
We do not mean to hold that an attorney is authorized to prosecute an appeal without the consent, or against the wishes of his client, but situations may arise when, as between a client and another party, the client may be estopped from denying the authority of his attorney to take any steps in the litigation wherein such attorney has been employed. It is always presumed that an attorney who has represented a party is authorized to do all acts necessary to properly conduct the litigation, and the party denying such authority has the burden of showing his want of authority, and is bound, as to the opposite party, by any act which the attorney does in the regular course of practice, however improper the act may be, if done without fraud or collusion.
Grand Court of Colanthe v. Downs, 98 Miss. 740, 53 So. 417, 418. In this case, Judge ANDERSON, speaking for the court, said that, "It is presumed that an attorney, assuming to represent a party, is authorized to do so, and to do all acts necessary to the proper conduct of the cause, and the party denying such authority, has the burden of showing his want of authority. A party to a suit may appear in person or by his attorney, and, if by attorney, he is bound, as to the opposite party, `by every act which the attorney does in the regular course of practice, and without fraud or collusion, however injudicious the act may be.' He can give no instructions to his attorney which he can take advantage of as against his adversary." Schirling v. Scites, 41 Miss. 644, and Lester v. Watkins, 41 Miss. 647.
But, in the recent case of Hirsch Bros. Co. v. R.E. Kennington Co., 155 Miss. 242, 124 So. 344, 88 A.L.R. 1, we held that an attorney could not bind a party unless he had been employed by such party, and overruled the earlier decisions holding that a party was bound by every act of the attorney he had employed.
It seems to be the sound principle that where a party employs an attorney, and such attorney acts for him in the court proceedings, such acts being presumptively authorized, and a third party is injured by such act of the attorney, and where the party for whom the attorney acts does not take reasonable steps to overcome, or undo, the wrongful consequences of the act of the attorney, such party is estopped from setting up any want of power in the attorney to act for him.
So applying this reasoning to the case at bar, we are of the opinion that G.E. Hart, having taken no steps to correct the alleged unauthorized act of his attorney, after a reasonable opportunity to know thereof, should be estopped now, after the decision of the cause, from setting up any want of authority in his attorney.
One further observation: We have already called attention to and quoted section 37, Code 1930, which provides that an appeal bond shall be sufficient if signed by one or more of several appellants. Let us suppose that there are several defendants in the trial court, and, after judgment adverse to all of them, a supersedeas appeal bond, naming all of them as appellants and as principals in the bond, is given and approved, signed, however, by only one of the parties named therein as appellants; and suppose that the case is submitted to the Supreme Court on that record and the judgment is affirmed as to one of the appellants who did not sign the bond and reversed as to all the others, and suppose we should then open the doors of this court to the surety on the appeal bond after decision to show that the appellant who did not actually sign the bond, and as to whom the decision was adverse here, had never, in fact, authorized an appeal — just how wide would this be to the admission of uncertainties in procedure and even to fraud itself? And this is stated without the slightest intimation that there has been any wrongful conduct of any kind in this present case.
Sureties on an appeal bond, upon the filing and approval of the bond, make themselves parties to the appeal, and answerable to the appellee, in respect to all questions touching liability on that bond. Since it is necessary that only one of several appellants shall sign the bond, it is the business of the surety or sureties to know who are the actual appellants for whom the bond is being executed, and the time to find that out is at the time of the signing and delivery of the bond. Since such is the business of the surety or sureties, there is no hardship in requiring the surety or sureties to attend to that business. And is there any safe course that this court can pursue other than to say to the surety or sureties on said appeal bond that those who are actually appellants must be ascertained by the surety or sureties before the bond is signed, and approved, or certainly before the case is submitted and decided, and that after an appeal bond brings a case here, and the case has been submitted and decided, all who are recited therein as appellants must be held to be appellants, so far as the said surety or sureties are concerned? We think there is no other safe course, and we must direct that judgment be entered against the appellant Hart and the surety on the bond.
It is so ordered.