Richardson v. Powell

SAYRE, J. — The brief for appellees insists that the appeal should be dismissed for that the transcript fails to show that all the defendants joined in the appeal, nor does it’ appear that those not joining have been brought in as provided by the statute or the rule of practice for such cases made and provided. The motion to dismiss the appeal on the ground above specified has not been spread upon the motion docket as required by rule 16 [277] (Code, p. 1509), but the submission on the motion has been received nevertheless and will be considered. (1) The motion is based upon the fact that the security for the costs of appeal is not signed by all the appellants. The security has been approved as sufficient by the register. It was not necessary that all the defendants should join in its execution. Indeed, some of the appellants are minors. The fact that the appeal was taken in the name and on behalf of all the defendants is evidenced by the formal application for an appeal in the name of “the respondents in the case,” and by the register’s certificate that “A. G. Richardson, et als., applied for and took an appeal.” (2, 3) It is further suggested in the brief that the organization of the court below is not shown by the transcript. This court’s jurisdiction depends upon the affirmative appearance in the transcript of the fact that the judgment on which the appeal is taken was rendered by a court organized according to law.— Pensacola, A. & W. Ry. Co. v. Big Sandy Iron Co., 147 Ala. 274, 41 South. 418. The caption of the proceedings shown by the transcript is informal to a degree, but our judgment is that, in connection with the certificate of appeal, it shows enough to warrant our consideration of the appeal. It may be noted that amended rule 26 (175 Ala. xix, 61 South, vii) does not apply to transcripts in equity cases. (4) Defendants pleaded and the proof showed that a judgment in ejectment had been rendered in favor of some of them against the complainants in this bill. Under previous rulings of this court this judgment should have concluded the cause in favor of those defendants who were parties to the action at law. —Coleman v. Stewart, 170 Ala. 255, 53 South. 1020; Robinson v. Inzer, 70 South, 717. The failure to observe this rule must result in a reversal oí the decree. (5) The court is of opinion that Foster v. Ballentine, 126 Ala. 394, 28 South. 529, lays down the correct rule in regard to the averment of complainants’ title in a case of this character. We do not construe Berry v. T. & C. R. R. Co., 134 Ala. 618, 33 South. 8, as holding anything to the contrary of Foster v. Ballentine, nor as holding that it is necessary in any case that the complainant in a bill for partition should set out the evidence of the title under which he claims an interest. Some observations to be found in Berry v. T. & C. R. R. Co., and supposed to [278] be influential in this case, are to be explained by the fact that the court was dealing with a case in which, under the law in-respect of conveyance of property adversely held as it then was, complainant could not aver title, for it had conveyed its title. Nevertheless complainant in that case was entitled to maintain the suit for the use of its alienee. We call attention to the fact that the transcript is not prefaced by an index of its contents as required by Supreme Court Rule 26, Code, p. 1512. For the error indicated above the decree is reversed, and the cause remanded. Reversed and remanded. Anderson, C. J., and McClellan and Gardner, JJ., concur.