(dissenting). Judge Smith and the writer think that the opinion in this case is opposed by our previous utterances on the question, and that the cases cited in support of it are in direct conflict with the rule announced in Boyd v. Roane, 49 Ark. 412. For example, most of the cases cited in support of the rule now laid down are to the effect that the use of the words, “et al.,” as applied to defendants in the court below or defendants in error other than those specifically named is entirely without significance and does not serve to identify the persons intended to be named as parties defendant in the court below or to a writ of error. The ground upon which these opinions rest is that the court will not proceed to judgment against a party whose identity is undisclosed upon the face of the record. In one of the cases it is said that for equal reason an appellate court should decline to proceed to judgment in favor of plaintiffs in error whose identity is likewise undisclosed. The holding under all these cases is directly opposed to the ruling laid down in Boyd v. Roane, supra. There the style of the case of the decree under consideration was in the following form, viz.:
“J. J. Busby v. M. L. Bell et al.”
alone. The record in the case disclosed that process had been issued for the infant defendants, and that a guardian ad litem, had been appointed to defend for them. The court held that the decree bound all the defendants who had been served with process, whether they were named or not. Of course, the same rule for like reason would be applied with reference to appeals.
In the case of Johnson v. West, 89 Ark. 604, the court held that a prayer of appeal by the attorney, without naming the defendants, was sufficient. The record in the court below showed that the attorney prayed the appeal and appeared as attorney for the defendants, and it was held that this showed that the appeal was granted to the defendants.
In this connection it is worthy of note that the Nebraska case cited to support the majority opinion is a case where the court held that one remonstrant to a road petition could not appeal for the others. Such ruling is contrary to our decision just referred to. It is said that the case of Johnson v. West, supra, has no application because the defense interposed in that case was a joint one and the appeal was granted by the trial court.
¥e can not see that this makes any difference in principle. The decree in the court below in the instant case shows what clients the attorneys who prayed the appeal represented. It is. true they were referred to by the attorneys as “appellants” instead of “plaintiffs.” It is plain, however, that the attorenys meant “plaintiffs” when they used the word “appellants.” There was but one defendant, and the decree was in his favor as against all the plaintiffs. Therefore, he had no right of appeal. It is plain then'that the attorneys meant to designate their own clients, who were plaintiffs in the court below, when they undertook to take the appeal.
The gist of the opinion in Johnson v. West, supra, is that the attorney may take the appeal for his clients, and that the decree entered of record in the court below may be looked to in order to see whom he represented. It could not make any difference in principle whether his clients had a single cause of action against the defendant or whether they had separate causes of action. The attorney had the right to speak for them and to take an appeal for them. It is true he designated them as “appellants,” instead of “plaintiffs,” but no one was misled by that because there was but one defendant, and the decree in the consolidated case was in his favor. To hold otherwise is to put form before substance. To say Camden Bank et al. v. Donaghey is to employ the usual and most convenient way in which to give the style of the case and to identify it. Such form has been in use since the State has been admitted into the Union as will be seen by reference to the volumes of our reports. Whether there are two or more appellants or appellees does not make any difference, the words, “et al.,” are generally used. What Chief Justice Hill said on this subject in Little Rock Traction & Electric Co. v. Hicks, 78 Ark. 597, applies with peculiar force here. We quote the following:
“Now, appellee desires to have the appeal as to the defendant not named in the prayer dismissed, and appellants desire to amend the record to make it expressly state that both defendants appealed. The object of the appeal was to lodge the case in this court, and to summon the prevailing party here as appellee. In this irregular way this .object is fully attained; no one was misled; no mistake occurred, except an omission to sign name of both defendants, when both attorney and clerk understood the insertion of the defendants for defendant to be a prayer on behalf of both. To sustain the contention of appellee and dismiss the appeal would be putting-form before substance, the letter before the spirit. The motion to dismiss the appeal is denied, and to amend the record is granted.”
The court under this authority and that of the subsequent case of Wimberly v. State, 90 Ark. 514, should have at least allowed to amend the prayer of appeal to show that the attorneys meant “plaintiffs” when they used the word “appellants.”
In the case of Wimberly v. State, supra, the court held that in a bastardy case the State through its prosecuting attorney could ratify and adopt as its own an appeal taken by the prosecuting- witness.