Moody and others against Gleason and Tuttle

Moody and others against Gleason and Tuttle. ALBANY, Oct. 1827. A trial in a justice's courô as to some of several defend. ants, puts the whole to the remedy by appeal, though some do not appear. So, where some being iiifants, appear by attorney. And in neither case, therefore, will a certiorari lie. The 0. P. may appoint guardians for infants on ap. peal, though none were appointed in the justice's couri~ • ON certiorari to a justice's court, of Saragota county. Gleason & Tuttle sued Moody and 4 others, by summons, which was served on all the defendants below. Issue was joined, and the cause tried by jury; the defendants below all appearing by attorney. Verdict for the plaintiffs below, against all the defendants jointly. Two of the defendants below were infants; for whom no guardian being appointed, they sued a certiorari to this court; which was returned. G. Palmer, for the defendants in error, moved to quash the writ of certiorari, on the ground that the only remedy of the infants was by appeal. He cited the 50 dollar act, (sees. 47, oh. 238, s. 86, 88;) 4 Oowen, 436; 5 Id. 19; 6 Id. 44; and remarked that the 0. P. might appoint a guardian on the cause cothing there. P. H. M'Omber, contra. There was no appearance or trial as to the infants. The appearance of the attorney was, so far as they are concerned, a nullity. The case then, as to them, is not within the statute and cases cited, giving an appeal, and forbidding a certiorari. Appeal lies only-in case of appearance and trial. [MAJORITY — * Curia.] * Curia. The infants have mistaken their remedy. The cause was tried on a valid issue as to some of the defendants.. This puts the whole to an appeal, admitting that the infants are to be considered as not before the justice’s court. A trial as to any of the defendants, requires an appeal on their part; and draws after it the same remedy as to all. The cause cannot be divided; part of the defendants bringing certiorari, and part appealing; or, as here, part remaining in the justice’s court. The course should have been to appeal to the common pleas, who might there have appointed guardians ; or, if this ceremony had been omitted in that court, error would lie for that cause, upon a verdict and judgment against the infants. Motion granted.