Patterson v. Gathings

Tarbell, J.: Motion to dismiss writ of error. This cause was pending in the chancery court of Monroe county. From the final decree a writ of error was prosecuted. The point is now made, that the cause should have been brought to this court by appeal instead of by writ of error. Section 411, of the Code of 1871, is almost a literal transcript of the Code of 1857, under which a party might appeal or sue out a writ of error, at his option. It is also objected, that Patterson, who prosecutes the writ of error, was surety, whose principal is not complaining. The action was instituted to enforce a lien created under the agricultural lien law of 1867. A writ of sequestration having been issued, by which 642 property was seized, Patterson became surety, on a forthcoming bond. The final decree passed against principal and surety. Of the right of the latter to appeal or sue out a writ of error, as a party to the the decree and a party in interest, there is no doubt. Code of 1871, § 1249; 1 Dana, 366; 2 Paige, 478; 2 Dan. Ch. Pr. 1540, ch. 31; 2 Smith Ch. Pr. 17, ch. 4; ib. 30, note a; 5 Cow. 720; 1 Barb. Ch. Pr. 355, book 1, ch. 12; 2 Mad. Ch. Pr. 572. 1 Dana, 366 is literally in point. The motion is overruled.