Opinion
December Term, 1850.
Where three are sued in debt, and one of the defendants, not contesting the plaintiff's right to recover, pleads that he is a cosurety of one of the other defendants, and a verdict is found against him, it is very doubtful whether he can appeal at all; but certainly he cannot appeal alone.
APPEAL from the Superior Court of Law of LENOIR, at Fall Term, 1850, Ellis, J., presiding.
W. H. Wright and J. H. Bryan for plaintiff.
No counsel for defendant.
This was debt on a note executed by Kornegay, Davis and Jarman. The defendants did not resist the plaintiff's recovery, but Jarman "pleaded" that he was the surety of Kornegay and Davis. Davis "pleaded" that he and Jarman were sureties of Kornegay.
The jury returned a verdict for the plaintiff, and (438) found that Jarman was a cosurety with Davis. From the judgment rendered on this finding, Jarman was allowed to appeal, the other defendants not objecting.
This proceeding is under secs. 131, 132, ch. 31 of the Revised Statutes. The "pleas," as they are called, do not contest the plaintiff's right to recover, but merely raise a family dispute between the defendants, in which the plaintiff has no concern. It is very questionable whether the right of appeal is given in such cases, as an appeal must necessarily delay the plaintiff's admitted right of recovery. But in this case the appeal is only taken by the defendant Jarman, and it is settled that one of two defendants cannot appeal. In such cases it is hardly to be expected that the other defendant will join in the appeal, as he has no reason to complain of the result.
PER CURIAM. Appeal dismissed.
(439)