
    ANDERSON vs. CADE ET AL.
    WESTERN DlST.
    
      September, 1836.
    APPEAL FROM THE COURT OF THE FIFTH JUDICIAL DISTRICT, THE JUDGE OF THE SEVENTH PRESIDING.
    The appeal must be dismissed when there is no appeal bond taken in favor of the appellee.
    Where the warrantors have assumed the defence of the action instituted against the defendant, and judgment is rendered in favor of the plaintiff, against the defendant, and for the latter against the warrantors: Held, that the plaintiff must be made a party to the appeal, in order that the judgment between the defendant and warrantors may be revised on the appeal.
    
      This case came before the court on a motion to dismiss the appeal.
    The plaintiff obtained judgment for five hundred and sixty-seven dollars against the defendant, Cade, and that a certain slave, which the latter had purchased from John Compton and Joseph Walker, as executors of an estate, should be seized and sold to pay said judgment.
    Cade cited Compton and Walker in warranty, and had judgment over against them for the .value of the slave, from which he was evicted. They appealed.
    The appeal bond was only executed to the defendant, Cade, although the atlornies of the plaintiff acknowledged service of the petition and waived citation of the appeal.
    
      C. Voorhies, for the plaintiff,
    moved to dismiss the appeal, because the appeal bond was not made payable or in favor of the plaintiff and appellee.
    
      Srownson, for the defendant,
    joined in the motion made by the plaintiff’s attorney, because it was impossible to try the case on its merits, as between all the parties. If the defendant’s judgment against the warrantors is to be called in question, he must have the right, at the same time, to resist the judgment of the plaintiff against him.
    
      Lewis, for the warrantors,
    contended that the judgment was erroneous as respects them, because it was rendered against them personally, instead of being in their representative capacity as executors.
    2. The correction of the judgment was only required as respects the defendant. He alone is concerned as to the judgment between him and the warrantors. It does not affect the plaintiff.
   Martin, J.,

delivered the opinion of the court.

The defendant, in this case, having called his vendors in warranty, they came in and contested the plaintiff’s right to the slave, sought to be made subject to his mortgage, and also that of the defendant against them as warrantors. They are now appellants from the judgment which supports the plaintiff’s claim, and that of the defendant against them in warranty.

The appeal must be dismissed ■when there Is no appeal bond taken in favor of the appellee.

Where the warrantors have assumed the de-fence* of the action instituted against the defendant, and judgment.is rendered in favor of the plaintiff against the defendant, and for the latter against the warrantors: Held, that the plaintiff must be made a party to the appeal, in order that the judgment ■ between the defendant and war-rantors may be revised on the appeal.

The plaintiff and appellee has prayed the dismissal of the appeal, on account of the absence of any appeal bond in his favor; this being the case, the motion to dismiss, as to him, must prevail.

This party being thus out of court through the 'laches of the appellants, they still insist on the reversal of the judgment obtained by the defendant against them, not on account of the absence of any right in the plaintiff to the slave in question, but on account of the absence of any right in the defendant against them as warrantors, because the sale at which he acquired the slave was effected by them in autre dróit, i. e., as representatives of a succession.

The vendors might have avoided contesting the claim of the plaintiff on the slave, and contented themselves with denying their liability in warranty. They have, however, thought it safer to assume the defence of their vendee, and thus relieve him from the necessity of undertaking it himself. It is useless to inquire whether, on failing in the attempt to defend him, they were bound to contest the plaintiff’s claim before this court; they have made their election, and the defendant was informed of it by the citation, which made him and the "plaintiff both appellees. Had this been otherwise, the defendant must have considered whether it was his interest to suspend his right or the judgment he had obtained against his vendors, by appealing from that of the plaintiff, decreeing the sale of the slave, which was the basis of his own.

He was relieved from this consideration by the conduct of his vendors, who, having undertaken his defence in the court below, determined on continuing it in this. Through their own laches, it now appears that the error, which they allege the District Court committed, cannot be corrected.

Their appeal being now dismissed, as to the plaintiff, and the year having elapsed, the defendant cannot appeal. The judgment is, therefore, final both against the defendant and ^ appellants, through the laches of the latter. Can they now be heard in disclaiming any interest in a defence which they have assumed, and thereby relieved the defendant from the obligation of undertaking 1 It appears to us it is now too late. In, undertaking to defend their vendee in both courts, if they .have not waived any exemption from the obligation of doing so, resulting from the character in which they effected the sale, they have incurred the obligation to indemnify him from the consequences of their negligence.

„ The appeal must, therefore, be dismissed.  