Hudson v. Gray , 58 Miss. 591 ( 1881 )

Chalmers, C. J.,

delivered the opinion of the court.

The executor and a portion of the heirs of an estate prayed an appeal from a decree directing a partition of the lands of the decedent. A bond was executed by two of the appellants only. This was sufficient; since, though all appellants must join in an appeal, one or more may execute the bond. The bond, however, was defective in having one proper surety only, the other person signing as surety being the executor, who, as before stated, was one of the appellants. If the executor in this case had appealed alone, no bond would have been required of him, under sect. 2334 of the Code of 1880, since he was a party to the partition proceedings solety in his fiduciary character, having no personal interest to be affected by the decree ; this case differing in this respect from the case between the same parties ante, p. 589.

But by uniting in the petition for appeal he has made himself an appellant, and therefore a principal ; and, while not himself required to give bond, he cannot make himself a surety for those with whom he has already become a co-appellant. The appellee is entitled to the indemnity of two sureties in addition to the liability which the law affixes to all who are appellants.

The bond may be a,mended within eight days by the addition of another surety. Code 1880, sect. 1407.