McDowell v. Mitcham

STONE, J. Two. principles,-,we- think,, are-• decisive of [419] ¿bis case. The final judgment states the case as “ Joshua Mitcham and Joseph Mitcham vs. John Bledsoe, and James T. Bledsoe, claimant.” The recital is, “ Came the parties, by their attorneys; arid issue being joined, came thereupon a jury,” &c. The verdict was in favor of plaintiffs in execution, assessing the value of the property levied on. The judgment-entry then proceeds'to recite; “that Joshua Mitcham and Joseph Mitcham recovered, before Washington Taylor, a justice of the peace in and for, said county, on the 17th day of'February, 1857-, a judgment for $28 -90, and $.1 40 costs, and also one, on-the same day, for $36 '4-4, and $i 40 costs, and execution issued and was levied,” '&ce Now, if these recitals are true — -and we must so regard them — the same plaintiffs recovered two judgments against-one and the same defendant, executions on-which .were levied on the same property, and a single claim was interposed. The parties then, by their pleadings, consolidated• the two cases, and went to trial on..one- issue, embracing the two cases. This being the case, and no question Being raised in the court-below as to the regularity of the proceedings, the question cannot,, for the first-time,'be raised in this court, that there should have been two issues, two trials, and two judgments. Consensus tollit .errorem. Gager v. Gordon, 29 Ala. 344; Byrd v. McDaniel, 26 Ala. 582; Vaughan v. Robinson, 22 Ala. 519; Rose v. Thompson, 17 Ala. 628; Lampley v. Beavers, 25 Ala. 534. [2.] If, in failing to render judgment against-John Bledsoe, tlie other surety on the appeal bond, the circuit court committed any error-of which the present appellants can complain .(a question which we do--not decide), that error was purely clerical, and could’have been amended in the court below. This court will not consider of such error in the first instance. — Grayham v. Roberds, 7 Ala. 719; Savage v. Walshe, 26 Ala. 633; Hunt v. Ellison, 32 Ala. 210; Shep. Dip. 572, § 152. If the circuit court rendered j udgment against the surety, for a greater sum than the penaltyof the appeal bond, there is nothing in-this record which enables us to so determine. Judgment affirmed.