Trittipo v. Edwards. team, standing in the road, and the plaintiffs asked him to get out of their way; he did not comply with the request, and they attempted to drive past him, and were injured, not by any action of the defendant, but by the attempt of the plaintiffs to drive past the defendant's team. This was the fault and negligence of the plaintiffs, and I think they cannot recover. DOWNEY, C. J., and BUSKIRK, J., hold the complaint sufficient. WORDEN, J., holds that the complaint would have been bad on demurrer, but that the defect was cured by verdict; hence we cannot reverse the judgment on the assignment of error as to the sufficiency of the complaint. On the trial of the cause, both the plaintiffs were sworn and examined as witnesses, over the objections and exceptions of the defendant. DOWNEY, C. J., and BUSKIRK, J., hold that the wife was properly admitted, but that the husband's evidence should have been refused. WORDEN, J., and PETTIT, J., hold that both should have been rejected under our statute which prohibits husband and wife from being witnesses for or against each other. As we all hold that the husband was improperly admitted, the judgment must be reversed, which is done at the costs of the appellees, with instructions to the court, on any future trial, to refuse to allow the husband to be a witness. F. W. Gordon and P. H. Ward, for appellant. G. W. Spahr, H. Dailey, F. Hanna and F. Knefler, for appellees. TRITTIPO V. EDWARDS. MORTGAGE OF PERSONAL PROPERTY.-Foreclosure.-Parties.—Where A. executed a mortgage on certain personal property to B., the mortgagor to remain in possession by the terms of the instrument until delivery of the property was demanded by B., and the mortgage was duly recorded within ten days af Trittipo v. Edwards. ter its execution, and afterwards part of the property was sold and delivered to C. by the mortgagor, and the mortgagee subsequently demanded possession of the property from A., and on his refusal to deliver the same, demanded from C. a delivery of the property purchased by him; Held, that C. was a proper party defendant to a suit to foreclose the mortgage. APPEAL from the Hamilton Common Pleas. DOWNEY, C. J.-James J. Trittipo executed a mortgage of personal property to Samuel Trittipo, the appellant; the mortgagor, by the terms of the mortgage, being entitled to retain the possession of the property until it should be demanded by the mortgagee. While the property was in his possession under this stipulation in the mortgage, the mortgagor sold two mules, part of the property mentioned in the mortgage, to the appellee, Edwards. When the mortgagee demanded possession of the property from the mortgagor, he refused to deliver it; and when he demanded possession of the two mules of Edwards, he refused to deliver them. He then brought this action against the mortgagor and Edwards, setting up the debt due him, to secure which the mortgage was executed, alleging the facts aforesaid, and praying judgment against the mortgagor for twenty-two hundred dollars, and against Edwards for two hundred dollars, the foreclosure of the mortgage and sale of the mortgaged property, or so much thereof as might be necessary to pay his debt, and for other relief. The mortgage was duly recorded within ten days after its execution. At the first term of the court after the action was commenced, judgment, by default, was rendered against Andrew J. Trittipo for the amount of the mortgage debt, and for the sale of the mortgaged property, including the mules purchased by Edwards. At a subsequent term of the court, Edwards demurred to the complaint, on the grounds that it did not state facts sufficient, that there was a misjoinder of causes of action, and a misjoinder of parties defendants. This demurrer was sustained, the plaintiff excepted, and final judgment was rendered for the said Edwards. Trittipo v. Edwards. The sustaining of this demurrer is the only error assigned. Conceding, without deciding, that no judgment for the value of the two mules could be rendered against Edwards in this action, still we think he was rightly made a party to the action, for the reason that he was the owner of the mules. subject to the mortgage, and having the possession of them, it was necessary that he should be made a party in order to foreclose his equity of redemption, and subject the property in his hands to sale. In The Branch Bank at Mobile v. Taylor, 10 Ala. 67, which was a bill to foreclose a chattel mortgage, the court say: "In the case of personal estate, in order to consummate a sale, the possession would necessarily be changed, and this makes it necessary, where a third person is in possession, under a claim of right, that his title should be passed upon before the sale takes place." See Singleton v. Gayle, 8 Port. 270; Woodward v. Wilcox, 27 Ind. 207. It seems that the court might, after an adjudication of the right of the vendee of the mortgagor, and when his right has been found to be subject to the mortgage, make and enforce an order against him for the delivery of the property to the proper officer, to be sold. See Ragsdale v. The Commonwealth, and The Commonwealth v. Ragsdal, 2 Hen. & Munf. 8. Certainly, after it had been settled that the property was liable to sale to pay the mortgage, if the vendee of the mortgagor should convert the property, or should before have converted it to his own use, he would be liable to an action therefor at the suit of the mortgagee. White v. Phelps, 12 N. H. 382. The judgment is reversed, with costs, and the cause remanded. D. Moss and F. M. Trissal, for appellant. 1 Lang et al. v. Cox and Another. LANG et al. v. Cox and Another. ASSIGNMENT OF ERRORS.-Names of Parties.-On an appeal to the Supreme Court, the assignment of errors must state the names of all the parties to the appeal; and if any of the appellants be therein designated only by the words "et al.," the appeal will be dismissed. APPEAL from the Marion Common Pleas. WORDEN, J.—It is suggested by counsel for the appellee, or appellees, that the assignment of error is defective in not setting out the names of all the parties, in accordance with the long standing rule on that subject. The assignment sets out the names of the parties as follows: "James Lang et al. v. Andrew J. Cox and Joseph B. Dessar." It appears that there are other appellants besides James Lang, whose names are not set out, but who are embraced in the "et al." This case illustrates the propriety of the rule, and the necessity of exercising some care in stating the names of the appellants and the appellees. The errors are assigned against Andrew J. Cox and Joseph B. Dessar as appellees. Dessar, by the record, cannot be made an appellee with Cox. If he is a party to the record in this court, he must be an appellant. The suit was brought below by Cox as sole plaintiff against Marie Darsch, James Lang, and Joseph B. Dessar. On the trial, there was a finding and judgment in favor of Mrs. Darsch; so that she may be supposed to be out of the controversy, inasmuch as Cox, who stood opposed to her in the court below, is pressing nothing against her in this court. There was a finding and judgment in favor of Cox, as against Lang and Dessar. Lang and Mrs. Darsch jointly moved for a new trial, but the motion was overruled, and exception taken. Dessar did not move for a new trial, nor preserve any question in the record. If Dessar and Mrs. Darsch are intended to be included as appellants under the "et al.," their names should be stated. If not, the course should be pursued that is provided for in section 501 of the code; unless, indeed, an appeal will lie under the circum Foist v. Coppin and Another. stances in the name of Lang alone as appellant, a point which we need not now decide. The name of Dessar was possibly used as an appellee through mistake. The appeal is dismissed for informality in the assignment of errors, and for want of compliance with the rule on the subject. H. A. Brouse, F. W. Gordon, and W. March, for appellants. J. T. Dye and A. C. Harris, for appellees. FOIST V. COPPIN and Another. JUSTICE OF THE PEACE.-New Trial.-Sufficiency of Notice.-Where a party appears before a justice of the peace on the hearing of a motion for a new trial, and does not object to the sufficiency of the notice, he cannot afterwards avail himself of that objection. SAME.-Judgment.—A justice of the peace has no power to change, vacate, or in any manner interfere with a judgment he has rendered, except to grant a new trial, or to enter satisfaction, where judgment is subsequently paid. APPEAL from Jackson Circuit Court. BUSKIRK, J.-The facts necessary to a proper understanding of the questions involved are these: Joseph R. Coppin, on the second day of January, 1857, commenced before a justice of the peace an action against John Foist and Sarah, his wife, for a debt created by Sarah prior to her marriage. The case was tried before the justice on the 10th day of January, and resulted in a finding for the defendants. On the 13th of January, notice was served on defendants that a motion would be made for a new trial on the 14th. On the 14th, the parties appeared before the justice, and the defendants, without making any objection to the sufficiency of the notice, appeared to and resisted the motion for a new trial. The motion was granted, and a new trial awarded. After the new trial was granted, notice was served on defendants, |