Elam v. Bynum

The judgment of the court was pronounced by Eustis, C. J. A motion is made to dismiss this appeal as to Bynum and wife. The former has furnished no appeal bond, and there is no ground on which he can be considered as lawfully before the court. As to the wife, the motion is made on the ground that she has no authority from her husband, or the court,to prosecute this appeal. The appeal appears to have been taken by the defendants respectively; it was allowed on their motion, in open court. We have always held that the appearance of the husband as a co-defendanl, [882] with the wife in a suit, was tantamount to-- an express authority on Lis part for her appearance.- The wife must' Be considered as having taken this appeal with the authority of'the-husband, in the court below. But he abandoned the appeal, gave no bond, and made no-appearance in this court. The wife is then without the presence- and without the authority of her husband in this court, no authority having been shown for her appearance. A's to the affidavit of the husband and the attorney, exhibited on the motion to dismiss, we are not-permitted to notice-th'em. The case must -be determined as it stood on the motion to dismiss,-without the appearance-of the husband as a party to the appeal; As to the other defendant, Dray, we have been furnished with- no argument-' on the part-of his-counsel, and from an examination of the evidence we aresatified there is no error in the verdict and judgment rendered against'him. The appeal, so far as relates to Bynum and wife, is dismissed; and the" judgment against Bray is affirmed, with costs-as to the several appellants.