
    Tardy et al v. Rosenstock.
    [80 South. 1,
    Division A.]
    1. Appeal and Ebboe. Failure of party to appeal. Issuance of summons.
    
    Under the Code of 1906, section 43 (Hemingway’s Code, section 19), requiring all parties to a decree or judgment who do not join in an appeal to be summoned to do so, where a judgment is rendered against several defendants and one of them does not join in the appeal, by the others, and is not summoned to do so, as required by the statute, the supreme court, instead of affirming the judgment, will either dismiss the appeal or require the absent party to be summoned before considering the case.
    2. Same.
    Where all parties against whom a judgment has been rendered do not join in the appeal and no summons was issued to those not joining in the appeal, as required by the statute, the appellee may have such summons issued in order to speed up the hearing of the case.
    Appeal from the circuit court of Bolivar county.
    Hon. W. A. Alcorn, Jr., Judge.
    Suit by Morris Bosenstock against Mrs. Fanny M. Tardy and others. From a judgment for plaintiff, certain of the defendants appeal.
    The facts are fully stated in the opinion of the court.
    
      Owen <& Roberts, for appellant.
    
      Somerville <& Somerville for appellee.
   Smith, C. J.,

delivered the opinion of the court.

The judgment appealed from was against the several defendants; but one of them, Charles E. Farries, did not join therein and no summons for him has been issued. Counsel for appellee call our attention thereto in their brief and say that because thereof the judgment of the court below should be affirmed.

Section 43, Code of 1906, section 19 of Hemingway’s Code, provides that “any one or more of the parties to a judgment or decree may appeal therefrom;” but it further provides that, if all of the parties to a judgment or decree do not join in the appeal, summons shall be issued for such as do not join therein to appear before this court and join in the appeal, and upon their failure so to do. they shall lose the right thereafter to appeal.

No summons has been issued herein for Farries. Consequently, appellant is not entitled under the statute to proceed with the appeal, but we do not think the judgment of the court below should be affirmed for that reason. The proper procedure, when the statute referred to has not been observed, is either to dismis the appeal or require the statute to be complied with before the cause is taken up for consideration by the court.

In this connection we will say that, in the event an appellant neglects to have a summons, issued for other parties to the judgment appealed from who fail to join him in his appeal, there is nothing to prevent the appellee from so doing should he desire to speed the hearing of the cause on its merits.

The case will be remanded to the docket and continued, with leave to appellants to comply with the statute herein referred to within thirty days; should they fail so to do, the cause will be dismissed.

Remanded to dochet.  