Kidd v. Turner

MANNING, J. There are two appeals,, one of January 5, 1874, and the other of March 6,1874, in this cause. Both are taken to the same term of this court, June term, 1874. And both are defective in not being taken in the names of all the parties who shordd be joined as appellants. The appeal bond given on the first appeal was for the costs only, and did not suspend the execution of the decree below. The appeal bond given on the 6th of March, 1874, was for a larger sum, and suspends the execution of tfie decree below, and shows that it is an appeal from the same decree (of 1873) that the former appeal was taken from, and also from a decretal order confirming a sale that was made under that decree after the former appeal was taken. Appellees move to dismiss both of the appeals because there are two, and for want of proper parties appellant, — and each severally, for the latter reason. And the appellants move to perfect the appeal, by striking out of the record the appeal of January, 1874, in order that they may proceed upon that of March, 1874. Our laws and practice do not favor the dismissal of a cause from the appellate court, for defective appeals that may be amended, but rather the amendment of them, when leave to amend is duly applied for. One appeal, though from the final [252] decree in a cause, is sufficient to bring up tbe cause for examination into any error that may be assigned, in this court; and only one appeal ought to have been taken. We dismiss the appeal of January 5, 1874, but retain the cause under the appeal of March 6, 1874; which appeal the appellants have leave to perfect, as they may be advised, by amendment to be allowed upon application to the court, during this term of the court. The appellants will be charged with the costs accruing upon all of these motions.