Opinion
(December Term, 1833.)
1. In an action against two who join their pleas and against whom after a joint trial, a joint judgment is rendered, an appeal can not be allowed at the instance of one defendant only — and if allowed by the County Court the Superior Court acquires no jurisdiction to try the cause, but is bound on the motion of the appellee to dismiss the appeal and award a procedendo.
2. Costs in the Supreme Court are in the discretion of the court. The appellant is not entitled to recover them as of right, upon a reversal of the judgment below — but may be adjudged even to pay them under circumstances.
The plaintiff brought a suit by warrant against Gilliam and one Hays. In the County Court they joined their pleas, and upon the trial, a verdict was found for the plaintiff against them both and a joint judgment rendered thereupon, from which Gilliam alone prayed and was allowed an appeal to the Superior Court. In that Court the plaintiff's counsel moved to dismiss the appeal, but the presiding Judge, Martin, overruled the motion and proceeded to try the cause, and the plaintiff obtained a verdict and judgment, from which the defendant appealed to this Court. Several points arising on the trial in the Court below were presented, by the case, but the question on which the cause was here decided, renders any statement of them unnecessary.
No counsel appeared for either party.
There are several questions or points of law submitted for our determination; but I do not deem it necessary to decide but one of them — Can one defendant appeal from a judgment which has been jointly rendered against the two? I am of the opinion he cannot. (218) Sharp v. Jones, 7 N.C. 306, is not a case in point for the defendant. In that case, the defendants severed in their pleas, and there were several judgments; one in favor of Jones the executor, that he go without day; the other against Winborne for the debt ascertained by the verdict. It was determined, that Winborne might appeal, because the judgment against him was single and not joint against him and Jones. It is a well settled rule that when a judgment is jointly rendered against two, they must both join in a writ of error, otherwise the Court will quash it. (2 Term, 736; 3 Bur., 1789; 1 Wilson, 88; Archb. P. K. B., 232.) If after error brought by one of several plaintiffs or defendants, in the names of all, the others refused to come in and join with him in the assignment of errors, they who refuse must be summoned and severed, after which he may proceed in the writ of error alone (Cro. Eliz., 891; Cro. Jac., 94; 1 Archb. B. K. B., 232), and the Court will give him time to assign errors, until the others can be summoned and severed; (2 Stra., 783), nor can he that is summoned and severed release the errors. (Arch., 256.) But if in trespass against three there be judgment against two of them by default, and the third justifies, and it is found for him, the two against whom judgment was given, can alone join in a writ of error, for the other cannot say that the judgment was to his prejudice (1 Achb., 233); and the same if two had been found guilty by verdict, and the other acquitted. (Cowp. 425.) We see that one defendant or plaintiff may bring a writ of error in the name of the whole, but he cannot assign error without authority from the whole, or by obtaining an order of summons and severance. The judgment in the meantime stands good and remains good until a judgment of reversal on the hearing of the cause, on the writ of error. But in the case of an appeal under our acts of Assembly, passed in 1777 (2 Less. c. 2), the granting of the appeal after bond given, vacates the judgment, and a trial de novo upon the law and the facts, takes place in the Superior Court. Therefore, if one defendant or plaintiff is permitted to appeal without the (219) consent of the others, it would vacate the judgment which might be most prejudicial to the others. The act of 1777 declares that "when any person or persons, either plaintiff or defendant," are dissatisfied with any judgment, sentence or decree of a County Court, they may appeal to the Superior Court. The construction which I put on these words in the act is, that when there is but one "person," either plaintiff or defendant, and he is dissatisfied with the judgment, he shall have the right of appeal: and where there are several persons, who have joined or been joined as plaintiffs or defendants, and they are dissatisfied with the judgment, they may appeal. — But I do not collect from the wording of the act, that the Legislature intended that any one of those several persons composing the plaintiff or defendant in a cause, might appeal at his solitary discretion. Generally when an appeal is taken, it is presumed to be an appeal as to all the parties. In this case, it is expressly stated that Gilliam alone appealed and that Hays did not. We think the judgment of the Superior Court is erroneous, that it should be reversed, and the appeal which was taken from the County Court should be dismissed with costs — and it is directed that a procedendo issue from the Superior Court to the Court of Pleas and Quarter Sessions of Granville County, to proceed on the judgment in that Court.
24 State Records, 48.
PER CURIAM. — This cause came on to be argued upon the transcript of the record from the Superior Court of Law of Granville County, upon consideration whereof, this Court is of opinion that there is error in the record and proceedings of the said Superior Court in this, to wit: that the said Superior Court ought not to have taken cognizance of the appeal brought up to that Court from the Court of Pleas and Quarter Sessions of the said county, the said appeal having been improvidently allowed: Therefore, it is considered and adjudged by the Court here, that the judgment of the said Superior Court be and the same is hereby reversed; and this Court proceeding to decide what judgment shall be entered in the said Superior (220) Court, doth order, that the said Court dismiss the said appeal with costs, and award a procedendo to the said Court of Pleas and Quarter Sessions, and that this judgment, and the opinion of this Court as delivered by the Honorable JOSEPH JOHN DANIEL, one of the Judges thereof, be certified to the said Superior Court accordingly. And it is considered by the Court here, that the plaintiff recover of the defendant and Ira C. Arnold and Wyatt Cannady, the costs in this Court incurred, to be taxed by the clerk.
Cited: Dunns v. Jones, 20 N.C. 292; Stiner v. Cawthorn, Ib., 642; Stephens v. Batchelor, 23 N.C. 61; S. v. Justice, 24 N.C. 433; Donnell v. Shields, 30 N.C. 373; Smith v. Cunningham, Ib., 461; Kelly v. Muse, 33 N.C. 184; Lynch v. Johnson, Ib., 225; McMillan v. Davis, 52 N.C. 221.