Ellis-Jones Drug Co. v. Coker

ON SUGGESTION OF ERROR. N.L. Chapman, one of the appellees, files both as a motion and as a suggestion of error, his motion to set aside the judgment rendered against him by this court in favor of appellant, Ellis Jones Drug Company.

By the judgment of this court, heretofore rendered herein, Coker recovered a sum less than was awarded to him in the lower court, and further, this court adjudged a recovery of said sum from Chapman by appellant; and it is now urged that the judgment so rendered against Chapman is void, because this court is without jurisdiction of the cause. The motion sets out that the appellant *Page 784 did not appeal from the judgment, denying relief to it against Chapman, rendered by the lower court.

These are the essential facts. The appellant filed its bill for injunction against Coker, praying that he be enjoined from foreclosing a deed of trust on a stock of goods and fixtures purchased by appellant from Chapman, and another alleging that Coker had no lien thereon, but prayed that Chapman be held bound to it for any sum he might be forced to pay Coker.

Coker filed a cross-bill seeking the enforcement of his trust deed against the interest of Chapman. The court below denied relief to appellant on the original bill as to Chapman and Coker, from which appellant sought to appeal. It promptly filed an appeal bond for double the amount of Coker's recovery. The appeal bond was payable to Coker and recited that the appeal was prosecuted from the judgment against it in favor of Coker. No mention whatever was made of Chapman, or the judgment in Chapman's favor.

Promptly a summons was issued by the clerk of the chancery court for Chapman to appear in this court and defend the appeal here. Service by the sheriff of said summons was waived by the attorney of record of Chapman in the lower court. The transcript of the record was filed in this court in due time. Separate assignments of error were filed by appellant, as to error in the judgment of the lower court as to Coker and as to Chapman. The same lawyer appeared in this court for both of said parties, and filed in one brief for Coker and Chapman his reply to appellant's brief, and argued the case orally for his clients.

No mention was made of the appeal bond in any manner. When the case was submitted to this court, the six months' time for appeal had not expired, though at the time this motion was filed the time had expired. The transcript was completed, or at least there was no objection *Page 785 thereto. In other words, the attention of this court was not called to the defect or want of bond until Chapman had appeared in this court, litigated, and lost his case, and he now seeks at our hands to have the judgment vacated. It comes too late. His actual appearance in this court by brief and oral argument gives this court jurisdiction of the subject-matter of this appeal and likewise as to his person. If he had made known his objection to the bond, or want of it, before he submitted his cause on the merits, that would be another question, but by waiving the process to this court and appearing here and submitting his cause, he is in this court for all purposes. The judgment is valid and binding upon him.

The motion is overruled, and likewise the suggestions of error.

Motion and suggestions of error overruled.