Opinion
August Term, 1849.
1. Where two defendants are sued upon what purports to be a joint bond, a verdict is found against both and an appeal taken to the Superior Court, a verdict may be rendered in the latter court against one only; and judgment pronounced accordingly.
2. Where there is a judgment in the County Court against two, and one appeals, they both join in one appeal bond, and there is judgment in the Superior Court against one and in favor of the other, upon the verdict of the jury, yet the court may render judgment against the latter upon the appeal bond.
APPEAL from the Superior Court of Law of ROWAN, at Fall Term, 1847, Pearson, J., presiding.
This was an appeal from the County to the Superior Court of Rowan. In the County Court a verdict was rendered in favor of the plaintiff against both the defendants, who appealed to the Superior Court, and filed an appeal bond, signed by each of them and their sureties. The plaintiff read in evidence a promissory note, signed Conner Long, which was admitted to have been signed by R. W. Long, one of the defendants. The plaintiff also proved that Conner and Long, as partners, carried on a public house of entertainment in the town of Salisbury, called the Mansion House, for several years previous to (76) 1842. It was proven that, in 1842, Conner Long sold the said Mansion House to one Shaver, and dissolved their co-partnership from and after the date of their sale, and that the plaintiff had full notice of the dissolution when he afterwards took from Long the promissory note, sued on, in the name of Conner Long. The plaintiff offered no evidence that the articles furnished to Long by him, and for the price of which this note was given, had been furnished before the dissolution of the firm of Conner Long, and before he had notice thereof. The defendant moved that the plaintiff be nonsuited because of the variance between the allegation of a note signed by Conner Long and the proof of a note signed by Long alone, and not by Conner, or by Long as the agent of Conner. The question was reserved by the court, with leave to move to set aside the verdict and enter a nonsuit. The jury found a verdict against Long and in favor of Conner.
The plaintiff's counsel thereupon moved for judgment against the said Long upon the verdict, and against the said Conner and one T. R. Rouche upon the appeal bond. The defendant's counsel resisted the judgment on the appeal bond, insisting that, so far as Conner was concerned, he had prosecuted his said appeal with effect.
Afterwards the court was of opinion that the plaintiff having commenced his suit jointly against Conner and Long, having obtained a joint judgment and verdict against them in the County Court, and compelled them to give a joint appeal bond, must be taken to have made his election to proceed against them in a joint action, and could not now elect to proceed against Long alone. Whereupon, on the question of nonsuit reserved, the court was with the defendants, and ordered the verdict to be set aside and a nonsuit entered. From this judgment the plaintiff appealed. (77)
H. C. Jones, Clarke and Boyden for plaintiff.
Osborne and Craige for defendant.
The judgment below is erroneous and must be reversed. The action was in the County Court of Rowan, upon a promissory note purporting to be executed by both the defendants. A verdict was rendered against both, and both appealed to the Superior Court, and united in the appeal bond. On the trial in that court the jury found a verdict for the defendant Conner and against Long, subject to the opinion of the court upon a question of law reserved. The plaintiff moved for judgment against Long upon the verdict, and against Conner and the surety for the prosecution of the appeal upon the appeal bond. The latter motion was opposed by Conner's counsel as to him, on the ground that he had prosecuted his appeal with effect. The presiding judge, being of opinion with the defendants upon the point reserved, directed the verdict to be set aside and a nonsuit to be entered, thereby declaring that the plaintiff was not entitled to the judgment asked. If he was entitled to either, there was error in the opinion, and there must be a judgment for the plaintiff. The only question upon which our opinion is required is as to the motion against Conner upon the appeal bond. The action was a joint one upon a joint contract, and in the County Court the verdict and judgment were against both defendants. In the Superior Court the trial was de novo, and there the jury severed the defendants by rendering a verdict for Conner and against Long. This is certainly against the rule of the common law, and would be erroneous. 1 Arch. N. P., 57; but it is authorized by the express provision of the act of (78) 1777, Rev. St., ch. 31, sec. 88, and was so decided in Jones v. Ross, 4 N.C. 335. The jury, then, were authorized to find the verdict they did, and, upon such finding, the act declares, judgment shall and may be rendered accordingly. The defendant Conner, however, says that judgment ought not to be rendered against him because he has prosecuted his appeal with effect. Has he so done? We think not. The appeal was a joint one, and the defendants both executed the appeal bond. This bond is in the usual form. After reciting the judgment in the County Court, and the appeal, it proceeds: "Now, therefore, if the said Richard W. Long and Henry W. Conner shall stand to, abide by, and perform such judgment as the court shall render in the premises," etc. All the obligors are bound to perform the judgment the Superior Court may render; and the bond was taken in reference to the law existing at the time of its execution. By the law the jury were at liberty to find such a verdict as they did, and, upon such finding, the plaintiff was entitled to judgment upon the appeal bond against the defendant Conner and the surety Rouche. They were the sureties of Long, that he should prosecute his appeal with effect. The defendant Conner, then, could not, under this bond, have prosecuted his appeal with effect when a verdict was rendered against his codefendant, Long. The judgment must be reversed, and judgment against Long upon the verdict, and judgment upon the appeal bond against all the defendants on the appeal bond.
PER CURIAM. Judgment accordingly.
Cited: Kelly v. Muse, 33 N.C. 186.
(79)