Dalcour v. McCan

On Motion to Dismiss. The opinion, of the Court was delivered by Manning, J. The prayer of the plaintiff is that the two defendants be jointly condemned to pay him $2,480.85. Judgment was rendered as prayed, and a remittance of a small sum having been made, the judgment was reduced to $2,425. M’Can alone appeals. *9 The motion to dismiss is on the ground that the judgment being' against two defendants jointly, one of whom is content therewith, the amount in dispute quoad the appellant- is only $1,212.50. It is true that each defendant is liable for one-half of the'demand alone but the whole is in dispute. Each item of the whole is contested in order to reduce the amount or altogether extinguish it. If the judgment had rejected the whole, the plaintiff could unquestionably have appealed. His demand was for over two thousand dollars. He must prove the whole in order to obtain a judgment for any part against the appellant. The judgment that we should render, if we agreed with the lower Court, would be for $2,425, although the appellant could only be held to pay one half of it. Suppose one of the defendants fiad confessed judgment, the examination of the case as to the other involves the examination of the whole claim. The point"has been ruled several times adversely to the mover. Lartigue v. White, 25 Ann. 291 and 325; State ex rel. Sc. Bd. v. Cousin, 31 Ann. 297; State ex rel. St. Cyr. v. Jumel, 34 Ann. 201. The motion is refused. Chief Justice Bermudez and Justice Todd dissenting.