The circuit court of Pike County, in equity, on October 18, 1957, rendered a decree which reads as follows:
On November 14, 1957, C. L. Chambers alone appealed from that decree. Since the other persons affected by the decree sought to be reviewed did not join in the appeal, summons should have been served on them as provided in § 804, Title 7, Code 1940. Cosby v. Moore, 259 Ala. 41, 65 So.2d 178. See Sellers v. Smith, 143 Ala. 566, 39 So. 356.
None of them, as far as we can determine, has been notified of this appeal as provided by § 804, Title 7, supra. They have not been brought in by order of this court, nor have they joined in the assignments of error or otherwise waived the notice to which we have referred. See Cosby v. Moore, supra; Barker v. Barker, 249 Ala. 322, 31 So.2d 357; Lane v. Henderson, 232 Ala. 122, 167 So. 270; Louisville & N. R. Co. v. Shikle, 206 Ala. 494, 90 So. 900. Lex H. Logan signed the appeal bond as surety but not as principal. See Smith v. Collier, 210 Ala. 23, 97 So. 101.
The record does not show that citation of appeal was served upon the appellees as provided by § 801, Title 7, Code 1940. However, the appellees have made their general appearance in this court contesting the appeal upon its merits without making any motion to dismiss, hence they have waived any lack of notice of appeal as provided by § 801, Title 7, supra. Mutual Sav. Life Ins. Co. v. Osborne, 30 Ala. App. 399, 7 So.2d 314. But see Brock v. Stimpson, 253 Ala. 138, 43 So.2d 133, wherein it is pointed out that a motion to dismiss the appeal timely filed by appellee is not waived by appellee's action in filing a brief upon the merits and cross-assigning errors.
For want of proper parties when the submission was had, the appeal is dismissed by this court ex mero motu. Sherrod v. McGruder, 209 Ala. 260, 96 So. 78; Matthews v. Donald, 263 Ala. 575, 83 So.2d 291, and cases cited.
The appeal is dismissed.
SIMPSON, GOODWYN, MERRILL and COLEMAN, JJ., concur.