Opinion
(June Term, 1840.)
Where an action is brought in the county court against two defendants, who plead severally, and a verdict and judgment are rendered in favor of one and against the other defendant, the latter may alone appeal from the judgment rendered against him.
THE plaintiff brought an action on the case, in the county court of NASH, against the defendant Reuben B. Batchelor and three others, for aiding and assisting in the removal of a debtor of the plaintiff from the county. The defendants appeared and pleaded severally the general issue, and upon the trial a verdict and judgment were rendered in favor of the plaintiff against two of the defendants, and against the plaintiff as to the other two defendants; whereupon the defendants against whom the verdict and judgment were given appealed to the Superior Court; in which, on the last circuit, before Nash, J., a motion was made to dismiss the appeal, upon the ground that a part only of the defendants had taken it. The motion to dismiss was overruled, and the plaintiff appealed to the Supreme Court.
(61) B. F. Moore and Battle for plaintiff.
The Attorney-General for defendants.
We think the Superior Court properly refused the plaintiff's motion. The point presented by it must be regarded as one quite settled by previous adjudications. In Sharpe v. Jones, 7 N.C. 306, where an action had been brought against several defendants, and the plaintiff obtained a judgment against one only, it was held that he had a right to appeal. This case has been repeatedly noticed in subsequent adjudications, and always recognized as laying down the true doctrine. See Hicks v. Gilliam, 15 N.C. 217; Dunns v. Jones, 20 N.C. 291. That doctrine is, that where there is a joint judgment, the appeal must be prayed by all against whom it is rendered, but where there are several judgments, or a judgment several in its parts, he may appeal alone who is alone aggrieved thereby. It has been said that this ought not to be. It is argued that when, in an action against two, a verdict is rendered against one defendant, and in favor of the other, the defendant complaining of the verdict cannot have it set aside so far as it is against him only, and a new trial awarded, and that, according to this analogy, he ought not to be permitted to obtain a trial de novo for himself by means of an appeal to a Superior Court. Now, it is to be remarked that the rule of practice referred to has been felt and acknowledged to be sometimes an inconvenience; and, on that account, where justice seemed strongly to protest against it, as in criminal prosecutions, it has been openly disregarded. See King v. Mawby, 6 Term, 619. Besides, an appeal, for the purpose of a trial de novo of the issues, is itself an entire departure from common-law principles; and there is no reason why, in making this departure, the analogy of (62) the common-law usages should be any further observed than the purposes of justice require. It has been objected, too, that the rule, whatever it may be, ought to be mutual; that in the cases put, the plaintiff cannot appeal solely from the judgment rendered in favor of one of the defendants, and therefore a defendant should not be allowed to appeal from the judgment rendered against him. But there is no foundation for this complaint of a want of mutuality. Each party is allowed to appeal, and the appeal must be from the whole judgment, so far as the appellant is interested. the convicted defendant is a stranger to every part of the judgment except that which is rendered against him, whereas the plaintiff is a party to the whole judgment, with respect to all and every of the defendants. The distinction is precisely the same which prevails in the prosecution of writs of error. The plaintiff in the original action suing out a writ of error must pray the reversal of the entire judgment. But where in an action one defendant has judgment, and the plaintiff recovers against the other, the latter may alone bring error to reverse the judgment rendered against himself. Cannon v. Abbott, 1 Lev., 210; Oliver v. Hanning, 1 Ld. Raym., 691; Vaughan v. Lariman, Cro. James, 138.
PER CURIAM. Affirmed.
Cited: Jackson v. Hampton, 32 N.C. 604.
(63)