
    *Thomas Ewers v. William Rutledge et al.
    Under the provisions of the act regulating appeals to the district court (Swan’s Stat. 717), one of two or more defendants, 'against whom jointly a judgment has been rendered in the common pleas, may appeal the case to the district court, and his appeal will vacate the judgment — its lien, however, being preserved — and take up the whole case.
    To perfect the appeal in such a case, it is not necessary for the appellant to give a bond that will cover the faults of his co-defendant; it is sufficient if it cover his own.
    Error to the district court of Muskingum county.
    William Rutledge and others, plaintiffs below, brought a civil action, in the court of common pleas, against Samuel Winegarner and Thomas Ewers, upon an administrator’s bond, given by Wine-garner as principal, and Ewers and others as sureties, reciting that Winegarner had been appointed administrator, with the will annexed, upon the estate of William Rutledge, Sen., deceased, and conditioned according to law.. The plaintiffs claimed to be dis» tributees, and that Winegarner had failed to pay, etc.
    The defendants below, Winegarner and Ewers, put in a joint answer, setting up payment by Winegarner, and release of him. This was found against them in the court of common pleas, and a joint judgment rendered against them for the several sums due to each of the plaintiffs. The defendants gave a joint notice of appeal, which was perfected by Ewers alone in a bond, of. which the following is a copy:
    BOND.
    Know all men by these presents, that we, Thomas Ewers, Simon Thomas, and Henry Horsey, of the county of Muskingum, in the State of Ohio, are held and bound firmly unto William Rutledge, Robert Irwin and Elonor Irwin his wife, Josiah Rutledge, Zachariah Rutledge, William D. Rutledge, Nathan Ships and Elizabeth E. Ships his wife, Thomas F. Rutledge, Isaac McCammon and Mary Jane McCammon his wife, and Simon Hursey, in the penal sum of twenty-four ^hundred and forty dollars and sixty-two cents, lawful money of the United States; to the payment of which sum, well and truly to be made, we bind ourselves, our heirs, executors, and administrators, jointly and severally, by these presents. Sealed with' our seals, signed and dated at Zanesville, this 19th day of .June, a. D. 1854. The condition of the above obligation is such, that, whereas, at the May term, A. D. 1854, of the court of common pleas within and for the said county of Muskingum, -in a certain civil action, in said court of common pleas then pending, wherein the said obligees were plaintiffs, and Samuel Winegarner and Thomas Ewers were defendants, a certain judgment was, by the said court of common pleas, rendered in favor of the said plaintiffs, and against the said defendants, for the sum of eleven hundred eighty-eight dollars and five cents, and thirty-two dollars and twenty-six cents costs of suit; and, whereas, the said defendants, attne said term of the said court of common pleas gave due notice of their intention to appeal from said judgment to the district court,, within and for the said county of Muskingum, and the said defendant, Thomas Ewers, is now desirous of ■ perfecting such appeal. Now know ye, that if the said defendant, Thomas Ewers, shall abide and perform the order and judgment which may be.made or rendered by the said district court against him, in this behalf, and shall also pay all moneys, costs, and damages, which may be required of or awarded against him by the said district court, in this behalf, then the above obligation shall bo void; otherwise, in full force and; virtue.
    Thomas Ewers,. [seal.] Simon M Thomas, [seal.] Henry Hursey, ' [seal.]
    Accepted and approved by me, this 19th day of June, A. d. 1854..
    Ch. C. Russell,
    
      Clerk of the said Court of Common Pleas.
    
    Witness: S. R. Tucker.
    At the September term, 1854, of the district court, a motion was-made by the defendants in error to dismiss the appeal. The successful result of this motion is the error complained of.
    The following is copied from the record:
    Wm. Rutledge et al. vs. Samuel Winegarner and Thomas Ewers.
    
    Appeal by Ewers.
    And now come the plaintiffs herein and move the court to dismiss the appeal, and for cause show to the court—
    That, at the May term, 1854, of the court of common pleas of this county, plaintiffs recovered a judgment against the said Samuel' Winegarner and *Thomas Ewers, for the sum of $1,188.05,. and $32.26, costs; that at the said term of said court, the said defendants gave notice of their intention to appeal from said judgment to the said district court; that on the 19th day of June, 1854, the said Ewers, with surety to the acceptance of the clerk of said court of common pleas, executed a bona to plaintiffs, conditioned, however, not that the said Winegarner and Ewers should abide and perform the order and judgment of the district court, etc., but conditional that the said Ewers should abide and perform, etc., as will more fully appear from a copy of the bond hereto attached ; that at. the said May term, 1854, in the said court of common pleas, on the rendition of said judgment against Winegarner and Ewers, the defendants gave notice of appeal generally, and that there was no allowance by the said court of common pleas to the said Ewers, fr> appeal any separate part of said ease.
    That the subject-matter of the action in which said judgment, was rendered, was and is not capable of the separation contemplated and provided for by section 4 of an act regulating appeals to the district court, passed March 23, 1852. Swan, 717.
    T. J. Taylor, Attorney for Plaintiff.
    
    ISee copy of bond before.)
    
      At the said September term, a. d. 1854, of our said district court, to wit, on this 23d day of September, a. d. 1854, on motion of plaintiffs, and it appearing to the court that the appeal bond in this case is conditioned for the payment, by the obligors, of such judgment as may be rendered in this court against the-defendant, Ewers,, and is not conditioned for the payment of any judgment which may be rendered in this court against the defendant, Winegarner, it is ordered by the court that the appeal be dismissed; provided, however, that if the defendants, or one of them, shall, within thirty days from this day, execute a new appeal bond, to the acceptance of the clerk, conditioned in the form prescribed by the statute in this behalf, for the payment of such judgment as may be rendered against the said defendants, Ewers and Winegarner, or either of them, then the order of dismissal above made shall not take effect, but the cause shall stand continued to the next term for trial. The defendant, Ewers, excepts to the decision of the court upon said motion, and asks that this exception be here noted, which is accordingly done.
    
      Goddard & Eastman, for plaintiff in error.
    
      T. J. Taylor, for defendant in error.
   * Thurman, C. J.

By the first section of the act regulating appeals to the district court (Swan’s Stat. 717), it is provided “that appeals may be taken from all final judgments in civil cases at law,, decrees in chancery, and interlocutory decrees dissolving injunctions, rendered by the court of common pleas, etc., by any party against whom such judgment or decree shall be rendered, or who-may be affected thereby, to the district court; and the cause so appealed shall be again tried, heard, and decided in the district court, in the same manner as though the said district court had original jurisdiction of the cause.”

The second section requires notice of the intention to appeal to be entered on the record of the court in which the judgment or decree is rendered, at the judgment term, and an appeal bond to be filed within thirty days from the rising of the court.

The third section prescribes the penalty of the bond, and who shall be its obligee, and requires it to be “ subject to a condition to the effect, that the party appealing shall abide and perform the order and judgment of the appellate court, and shall pay all moneys,. costs, and damages which may be required of, or awarded against said party, by such coui't.”

The fourth section allows an appeal of a part of a case, where the ■interest of the appellant “ is separate and distinct from that of the other party or parties.”

The ninth section provides: “ That when an appeal shall be .granted, and bond and security given thereon as aforesaid, the judgment or decree rendered in such case, in the court below, shall thereby be suspended.”

Under this legislation, we are to inquire whether the district court erred in dismissing the appeal in this case.

In the first place, it is to be observed that counsel are right in saying that section 4 of the act has no application here. The purposes of that section may be seen by a reference to Hocking Valley Bank v. Walters, 1 Ohio St. 201; Glass v. Greathouse, 20 Ohio, 511; and Emerick v. Armstrong, 1 Ohio, 516.

*In the next place, we are of the opinion that if Ewers’ appeal can be sustained, it brings up the whole case. The judgment was joint, and we do not suppose that the legislature intended that a joint judgment should be enforced against one of the defendants by execution, and suspended against the other. It is true that section 9, before quoted, differs in language from the former statutes respecting appeals. Under the old law, an appeal vacated the judgment appealed from, but preserved its lien; the present statute declares that the judgment shall be “ suspended." But the purpose in both statutes is, we imagine, the same — namely, to preserve the lien — for the legislature could not have intended that there should be two judgments in force; one rendered by the common pleas, and the other by the district court.

Under the old law, one of two or more judgment debtors had a right to appeal, and if the- judgment were joint, his appeal vacated it and took up the whole case, however unwilling his co-defendants might be. This was expressly decided in Emerick v. Armstrong, ■supra, and affirmed in Glass v. Greathouse, supra, upon reasons that are entirely satisfactory, and which, we think, apply with as much force tb^he existing statutes as to those under which the above decisions were made. Hence it was said in Hocking Valley Bank v. Walters, supra, which was a case under the present statute, that an rappeal vacated the decree appealed from.

In the case before us, the district court dismissed the appeal, because tbe bond was not conditioned for tbe payment of whatever judgment should be recovered against the defendant, Winegarner, but only for the payment of such judgment as should be recovered against the appellant Ewers.

If this is a correct construction of the statute, it is very evident that the right of appeal is of no value whatever to many defendants, and in a great variety of cases. Eor of what use is it for a defendant, who has a valid defense, to appeal from an erroneous ^judgment or decree against him, and make good his defense in the appellate court, if he is to be bound by the appeal bond to pay whatever judgment may be recovered against his co-defendant, who has no defense ? True, in actions ex contractu, the general rule, before the adoption of the code, was, that the plaintiff must recover against all the defendants, or he could recover against none; and hence, in such cases, an appellant incurred no additional risk by executing an appeal bond covering the default of his co-defendants as well as his own. But in suits in chancery, actions in tort, and ■certain exceptional cases in actions ex contractu, a different rule prevailed, and a recovery might be had against a part-only of the defendants, and the others be discharged. In such cases, therefore, to require an appellant to stipulate for his co-defendants as well as for himself, would be, in a vast number of instances, to deprive him of any benefit from his appeal. He might make good his defense and obtain a judgment or decree against the plaintiff for costs, and yet be compelled, by force of the appeal-bond, to pay the plaintiff’s ■claim against his co-defendants — not because he was 'originally bound for them, or ought in equity or good policy to be so, but simply because they were unable to pay.

We see nothing in the statute that requires so hard a construction. It provides that an appeal may be taken “ by any party,” against whom a judgment or decree shall be rendered, “ or who may be affected thereby;” and that the condition of the appeal bond shall be “ to the effect, that the party appealing shall abide and perform the order and judgment of the appellate court, and shall pay all moneys, costs, and damages which may be required of, or awarded against said party, by such court.” The order and judgment ” here mentioned, are an order or judgment against the appellant; the expression, “said party,” refers to the appellant; and the word “ party ” is not used as a noun of multitude only, necessarily including all the defendants, but means the one, or more of them — ■ all, or less than all — wbo shall take the appeal and execute the bond.

*It is admitted that one of several defendants may appeal the case; and it will not be denied that, if a judgment be recovered against him, he may become liable upon his appeal bond, although no judgment shall have been rendered against his co-defendants but how can either of these things be, if the word “ party ” necessarily means all the defendants ?

Had this case arisen under the act of 1831 (Swan’s old Stat. 682)' —which required the appeal bond to be “ conditioned for the payment of the full amount of the condemnation money, in the Supreme Court, and costs, in case a judgment or decree should be entered therein in favor of the appellee” — there might be more doubt-about it. But even under that statute — in view of all its provisions and the decisions before referred to, holding that one of several defendants should appeal the whole case — it might be questioned whether a defendant, against whom no judgment was recovered in the Supreme Court, could be made liable, on the appeal bond, to pay a judgment rendered against his co-defendant. Upon this question, however, we neither express nor intimate an opinion, because-it is in nowise involved in this case. It is sufficient that the act. under consideration requires no such hardship.

The order quashing the appeal must be reversed, and a writ of' procedendo awarded.  