McDOWELL vs. MITCHAM

McDOWELL vs. MITCHAM. [TIB'AI. OF EIGHT OF FKOPKRTY — AVKGAI, FEO>r JUSTICE'S COURT.] .1. Irregularity waived, net available on error. — On'a trial uf the right of property under the st-afco fce, in an appeal ease from a justice’s court, two executions, issued on different judgments between tlie same parties, having been levied on the same property, — tho objection cannot be first raised on error, that there should have been two issues, two trials, and two judgments, when the recitals of tho -record show that the two cases were consolidated in the circuit court, and there tried on a- single issue, without objection from cither party. 2. Clerical misjorision amendable, and not available-on error. — The failure to reuder judgment against one of the sureties on the ajipeal bond, in an appeal oase-ñ-om a justice’s court, is a clerical misprision, which is amendable in the primary courfc; consequently, if such irregularity be an error of which the other surety and his principal can complain at all, they cannot raise the objection for the first time on error. Appeal from tbe -Circuit Court of Coffee. The record does not show the name of the presiding judge. The transcript in 'this case contains only ‘the papers returned to the circuit court by the justice of the peace, before whom the proceedings originated, and the judgment of the circuit court. The justice’s return shows, that, on the 17th January, 1857, he rendered two judgments against John Bledsoe — one in favor of Joshua Mitcham, and the other in favor of Joseph Mitcham ; that executions were issued on both of these judgments, and were levied on a horse, as the property of said John Bledsoe; -that a claim to the horse was interposed- by-one James T. Bledsoe, and bond given for the trial of the right of propertythat a trial was had before the justice, and the jury found the horse subject to the executions; and that the claimant took an appeal to the circuit court, and gave bond, in the penalty of $100, with John Bledsoe and James McDowell as his sureties. The judgment of the circuit court is in the following words: “ Joshua Mitcham and Joseph Mitcliam vs¿ John Bledsoe, and Xas.- Ts Bledsoe, claimant. Came the parties, by their-attorneys-;, and issue being ^joined,' came thereupon a jury,” &c., “ who, upon their oaths, do- say, they find for the plaintiffs, and assess the value of the property at $75; and it appearing to the satisfaction-- of. the court, that Joshua Mitcham and Joseph Mitcham recovered, before Washington Taylor, a justice of the peace in and for said, county, on the 17th February, 1857, a judgment for $28 90, and $1 40 costs, and also one, on the same day,, for $36 21, and $1 40 costs, and that" execution issued-and was levied on the 30th February, 1857', upon a horse, the property condemned, — it is therefore ordered by the court, that venditioni exponas issue to sell the said-property condemned, for the satisfaction of said execution ; and that execution issue, for-all' the costs in this cause expended, against said claimant and his surety, James T. McDowell, in favor of said plaintiffs.” The judgment of the circuit court is assigned as error. Pugh & Bullock, for appellant. [MAJORITY — STONE, J.] STONE, J. Two. principles,-,we- think,, are-• decisive of ¿bis case. The final judgment states the case as “ Joshua Mitcham and Joseph Mitcham vs. John Bledsoe, and James T. Bledsoe, claimant.” The recital is, “ Came the parties, by their attorneys; arid issue being joined, came thereupon a jury,” &c. The verdict was in favor of plaintiffs in execution, assessing the value of the property levied on. The judgment-entry then proceeds'to recite; “that Joshua Mitcham and Joseph Mitcham recovered, before Washington Taylor, a justice of the peace in and for, said county, on the 17th day of'February, 1857-, a judgment for $28 -90, and $.1 40 costs, and also one, on-the same day, for $36 '4-4, and $i 40 costs, and execution issued and was levied,” '&ce Now, if these recitals are true — -and we must so regard them — the same plaintiffs recovered two judgments against-one and the same defendant, executions on-which .were levied on the same property, and a single claim was interposed. The parties then, by their pleadings, consolidated• the two cases, and went to trial on..one- issue, embracing the two cases. This being the case, and no question Being raised in the court-below as to the regularity of the proceedings, the question cannot,, for the first-time,'be raised in this court, that there should have been two issues, two trials, and two judgments. Consensus tollit .errorem. Gager v. Gordon, 29 Ala. 344; Byrd v. McDaniel, 26 Ala. 582; Vaughan v. Robinson, 22 Ala. 519; Rose v. Thompson, 17 Ala. 628; Lampley v. Beavers, 25 Ala. 534. If, in failing to render judgment against-John Bledsoe, tlie other surety on the appeal bond, the circuit court committed any error-of which the present appellants can complain .(a question which we do--not decide), that error was purely clerical, and could’have been amended in the court below. This court will not consider of such error in the first instance. — Grayham v. Roberds, 7 Ala. 719; Savage v. Walshe, 26 Ala. 633; Hunt v. Ellison, 32 Ala. 210; Shep. Dip. 572, § 152. If the circuit court rendered j udgment against the surety, for a greater sum than the penaltyof the appeal bond, there is nothing in-this record which enables us to so determine. Judgment affirmed.