Grove v. Swartz

Bowie, J., delivered the opinion of the Court. There is a motion to dismiss the appeal in this case, on the ground that one of the nominal appellants had died before the prayer for an appeal was filed in the Court below. The appellee has filed an affidavit, showing that George Grove, one of the defendants and nominal appellants, died on or about the 26th of January, 1876, four or five weeks before the appeal was taken, and no counter evidence is adduced by the appellant William K. Grove. Assuming the facts to he true as stated, it does not clearly appear from the record, that the appeal was taken or intended to he taken in the names of both defendants.

The entry on the record is as follows, viz., “1876 March 1st, prayer of defendants attorney, for an appeal to the Court of Appeals filed.” The word “defendants’’ in the above citation maybe taken in the possessive case singular number and applies only to one, meaning the surviving defendant. Each defendant, if living, had the right of appeal, hut one being dead, the term “defendants attorney” could only mean William K. Grove’s attorney. The motion to dismiss must therefore he overruled. Several objections were raised to the award below which were overruled, the award affirmed and judgment rendered thereon in favor of the plaintiff, from which action of the Court .the