Burke v. Erwin's Heirs

Martin, J., delivered the opinion of the court. The plaintiff claimed from each of the defendants, his virile share of five thousand dollars, alleged to be due him for professional services in the settlement of their ancestor’s estate. i' Two of the defendants did not appear, the others pleaded the general issue. There was a verdict and judgment for the plaintiff, and the defendants appealed, after an unsuccessful effort to obtain a new trial.' A dimissal of the appeal was prayed, on the grounds that the virile share of none of the defendants amounted to more' than two hundred and fifty dollars, on account of the insufficiency of the bond, which was not subscribed by all the the appellants, and which was for too small a sum, and on account of the defendants not having appealed. We are of opinion, the appeal ought not to be dismissed. The plaintiff’s is a joint claim for a large sum “■ J ° ° several heirs, and the amount of the judgment, does not determine the right of appeal, which is governed by the amount claimed. of&e appellant ■bond! is notaos- The omission of Sants to° api peal,cannot affect the right of the The signature of the appellant to the bond is not essential, ° „ as he is bound by the judgment, more virtually than by the bond. The penalty of the bond, as fixed by the judge, is tw0 thousand five hundred dollars, and the judgment is for one thousand four hundred and thirty dollars. The omission of some of the defendants to appeal, cannot affect the right of the others to do so. On the trial, two bills of exception were taken, but as they . _ were presented by the appellee, it is useless to examine them. - No other question of law arises. The jury thought the claim of the plaintiff for the amount of their verdict, was sufficiently proved; the court declined granting a new trial. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed with costs.