
    BURDINE vs. MUSTIN.
    [motion to dismiss appeal.]
    1. Implied waiver of defective appeal bond.—The filing of a brief by the appellee’s attorney, in which he discusses the merits of the case, and, at the same time, insists that the appeal ought to be dismissed, is not equivalent to a joinder in error, nor is it an implied waiver of defects inthe appeal bond.
    2. Sufficiency of appeal bond in description of judgment.—If an appeal bond describes the judgment as having been rendered against the appellant and her husband, when the record shows that it was rendered against her alone, the appeal will be dismissed on motion.
    
      Appeal from tire Circuit Court of Pickens.
    Tried before the lion. William S. Mudd.
    This action was brought by William GL Mustin, against •James T. Burdine, and Mary, his wife, and was com- ' menced in a justice’s court. ¿^g^!tsiice%aving rendered judgment against the defe^^^A&sL.3|urdine appealed to the circuit court, and e^eisfed an appeal l|ond, without joining her husband. In me|«c^£^&%,£the plaintiff and Mrs. Burdine only ap¡paced; and that court rendered judgment, dismissing the Sppg^g'®t]ifee&Sst|í)f Mrs. Bur-dine and her sureties. Eroa^jhis judgpaenf Mrs. Burdine sued out an appeal, and executeffan^Tppeal bond, wherein the judgment is-described as having been rendered “in a cause between William GL Mustin, as plaintiff, and James T. Burdine and his wife, Mary, as defendants.” On these facts, the appellee’s counsel submitted a motion to dismiss the appeal, on account of the insufficiency of the appeal bond; which motion was resisted by the appellant’s counsel, on the ground that the motion came too late.
    Alex. B. Clitherall, for the motion.
    Turner Reavis, contra.
    
   R. W. WALKER, J.—

The fact that an attorney has filed a brief, in which he discusses the merits of the case, and, at the same time, insists that the appeal ought to be dismissed, as not having been properly taken, cannot be considered as equivalent to a joinder in error, or as a waiver of defects in the appeal bond.

The appeal in this case falls completely within the rule settled in Dumas v. Hunter, 28 Ala. 688; and, upon the authority of that case, must be dismissed.  