Opinion
6 Div. 812.
October 17, 1935.
Vassar L. Allen and W. Emmett Perry, both of Birmingham, for petitioners.
Where one of the nominal appellants was not a party to the judgment of the court below, his joinder in the other's assignments of error should simply be disregarded as redundant and immaterial and without prejudice to the consideration of the assignments of error on their merits. Gilley v. Denman, 185 Ala. 561, 64 So. 97; Shortridge v. Southern Min. Land Co., 186 Ala. 660, 65 So. 354; Adams v. Bibby, 194 Ala. 652, 69 So. 588.
B. F. Smith, of Birmingham, for respondent.
Where a joint appeal is taken without severance in assignments of error, the case cannot be reversed unless error complained of is prejudicial to all the appellants. Sewell v. Cherokee County Bank, 230 Ala. 111, 159 So. 830.
It appears that a judgment was rendered in the trial court against all three of the defendants, but upon motion the trial judge set aside the judgment as to one of the appellants, J. R. Oden. Therefore, there was no judgment against him when the appeal was taken and he was but a nominal appellant, and his joinder with the others in the assignments of error should be disregarded as redundant and immaterial and without prejudice to the consideration of the assignments on their merits. Gilley v. Denman, 185 Ala. 561, 64 So. 97. The case at bar falls within the influence of the Gilley Case, supra, and is not controlled by the cases cited and relied upon in the opinion of the Court of Appeals. The case of Gilley v. Denman, supra, was followed and approved in the case of Adams v. Bibby, 194 Ala. 652, 69 So. 588, notwithstanding the dissent of the writer.
The recent case of Sewell v. Cherokee County Bank, 230 Ala. 111, 159 So. 830, relied upon in the opinion of the Court of Appeals upon rehearing, is unlike the present case. There, there was judgment against both appellants and which was in full force when the appeal was taken.
The Court of Appeals erred in not considering the assignments of error because of the joinder therein of J. R. Oden, a mere nominal appellant. The writ of certiorari is awarded, and the judgment of the Court of Appeals is reversed, and the cause is remanded to said court for further consideration in conformity with this opinion.
Writ awarded, and reversed and remanded.
All the justices concur.