Shelton v. Harlow

54 Ky. 547

• Court: Court of Appeals of Kentucky
• Decided: June 7, 1855
• Status: Published

Opinion

Judge Stites

delivered the opinion of the Court—

Sarah Harlow brought an action for libel against Shelton, Black, Roberts, and Ethrington. Black, Shelton, and Roberts answered jointly, and Ethrington separately; there was also a joint answer filed by all the defendants. A verdict was rendered against them for four hundred and fifty dollars, and motion made for a new trial upon various grounds assigned by all the defendants, and by Roberts upon the ground that there was no evidence against him.

Upon the trial of this motion, the court being of opinion that there was no proof against Roberts, put the plaintiff upon terms that she should dismiss her suit against him, and she having elected to comply with the terms, and entered a nolle prosequi against Roberts, the motion as to the other defendants was overruled, and a judgment rendered against them for the amount of the verdict; to reverse which this appeal is taken.

Inasmuch as the evidence upon the trial does not appear in the record, we must presume that it was sufficient to sustain the verdict against all the defendants except Roberts, and insufficient as to him, and the only question presented is, whether the action of the Circuit Court, in rendering judgment against three defendants, when the verdict embraced four, was erroneous ?

We think it was not. In Dougherty vs. Dorsey, 4 Bibb, 210, it is said “that where a jury, upon a verdict of guilty against a number of defendants, assess several damages, the irregularity may be cured by the plaintiffs entering a nolle prosequi as to one of the defendants, and taking judgment against the others, or by entering a remittitur as to the lesser damages, or, even without entering a remittitur, by taking judgment for the greater damages. (2 Tidd’s Practice, 927.)

We perceive no difference, in effect, in allowing a plaintiff, after a verdict of guilty against several defendants, where several damages have been improperly assessed, to elect whether he will hold all liable by taking a judgment against all for the larger amount of damages, or only apart of the defendants by a nolle prosequi against the others, and permitting him, as in the present case, to enter a nolle prosequi as to one not guilty, and taking judgment against those’ who are guilty. In either case it is a departure from the verdict, strictly speaking, but in both the substantial ends of justice are obtained.

As already intimated, the presumption in the absence of the evidence is, that Roberts was not guilty, and that the other defendants were. He should not be held amenable for their acts, neither should they be exonerated by an improper finding against him, from the payment of a verdict awarded for injuries done by them. The bare possibility that the jury, in estimating the damages, increased them because of the number of the defendants, without any proof showing that such was the case, will not avail for a reversal.

Judgment affirmed.