Smith v. Graves

108 N.E. 168, 59 Ind. App. 55, 1915 Ind. App. LEXIS 171
CourtIndiana Court of Appeals
DecidedJanuary 19, 1915
DocketNo. 8,394
StatusPublished
Cited by24 cases

This text of 108 N.E. 168 (Smith v. Graves) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Smith v. Graves, 108 N.E. 168, 59 Ind. App. 55, 1915 Ind. App. LEXIS 171 (Ind. Ct. App. 1915).

Opinion

Pelt, J.

This is a suit by appellee, Warren W. Graves, against appellants' Mortimer Smith, Levi Bowser, and Ned Koeher, to recover damages for alleged malicious prosecution of appellee on a charge of bribing a voter at the election in 1908. The complaint was in six paragraphs on which issues were joined against all the defendants by general denial. The case was tried by a jury and resulted in a verdict as follows: “We the jury, find for the plaintiff, Warren W. Graves, against the defendants Mortimer Smith, Levi Bowser, and we assess plaintiff’s damages at one thousand dollars.” Appellants Smith and Bowser filed a joint and several motion for a new trial. All the appellants thereafter filed motion for a venire de novo, which was overruled by the court and excepted to by the defendants. There[58]*58upon the court overruled the motion for a new trial to which .the "defendants each separately and severally excepted”. Appellants Smith and Bowser separately and severally moved to arrest the judgment, which motion was overruled and "the defendants each separately and severally excepted”.

Thereupon the court rendered judgment as follows: "It is now therefore ordered, adjudged, and decreed by the court that the plaintiff have and recover of and from the defendants Mortimer Smith and.Levi Bowser the sum of $1,000 as damages herein, to which adjudgment of the court said defendants separately and severally excepted.” The record shows that each of the defendants prayed and was granted an appeal. The appeal bond recites that Smith and Bowser have taken an appeal from the judgment of $1,000 rendered against them in favor of appellee. Error has been separately assigned in this court by each of the three appellants.

1. No motion has been filed to dismiss the appeal, but the foregoing facts are shown both by the briefs and by the record. The question of the court’s jurisdiction of the appeal must therefore be determined before the merits of the appeal can be considered.

2. 3. The record suggests the question, Is there a final judgment from which an appeal lies? The jury did not find either for or against Mr. Koeher, and no judgment was rendered either for or against him. A final judgment is one that disposes of all the issues, as to all the parties involved in the controversy presented by the pleadings, to the full extent of the power of the court to dispose of the same. Wehmeier v. Mercantile Banking Co. (1912), 49 Ind. App. 454, 456, 97 N. E. 558; Barnes v. Wagoner (1907), 169 Ind. 511, 514, 82 N. E. 1037; Crow v. Evans (1912), 178 Ind. 661, 662, 100 N. E. 8. When several persons are defendants and the jury finds for part and against part of such defendants, on [59]*59appeal by the defendants against whom judgment was rendered, the defendants who obtained a verdict and judgment in their favor are neither necessary nor proper parties to the appeal. Town of Windfall City v. First Nat. Bank (1909), 172 Ind. 679, 686, 87 N. E. 984, 89 N. E. 311; Southern R. Co. v. Elliott (1908), 170 Ind. 273, 276, 82 N. E. 1051; Hubbard v. Burnett-Lewis Lumber Co. (1912), 51 Ind. App. 97, 99, 98 N. E. 1011. But the foregoing proposition is only relatively important here for the reason that there is no judgment either for or against Mr. Kbcher.

4. The action is in tort and appellee can have but one satisfaction for the damages, if any, sustained by him. The liability of the appellants as tortfeasors is several and the suit may be maintained against all, or one, or any number of them. There is no right of contribution that can be enforced as between such defendants or persons liable for the same tort. A satisfaction of such claim for damages obtained from one or any number of such defendants or persons so liable for the same tort ends all liability therefor as against any and all persons against whom liability might have been enforced before such satisfaction was obtained. American Express Co. v. Patterson (1881), 73 Ind. 430, 436; Baltes v. Bass, etc., Mach. Works (1891), 129 Ind. 185, 188, 28 N. E. 319; City of Valparaiso v. Moffilt (1895), 12 Ind. App. 250, 253, 39 N. E. 909, 54 Am. St. 522. As a general rule, a joint tortfeasor against whom judgment has been rendered cannot complain that judgment was not also obtained against a eoparty to the suit. 2 R. C. L. 234; Burroughs v. Eastman (1894), 101 Mich. 419, 59 N. W. 817, 45 Am. St. 419, 24 L. R. A. 859. "While a person injured by joint tortfeasors may maintain separate suits against each person who aided in the commission of the tort, yet if he elects to sue them jointly and obtains a judgment in such action, he can not afterwards maintain separate suits against such persons, but is compelled to abide the result of such suit. In 2 Black, Judg[60]*60ments (2d ed.) §780, it'is stated: “The plaintiff who is injured by a tortious act shared in by several must elect whether he will prosecute them all in a joint action, or sue one or more separately. He can not do both.” In Sessions v. Johnson (1877), 95 U. S. 347, 348, 24 L. Ed. 596, the court says: “Where a trespass is committed by several persons, the party injured may sue any or all of the wrongdoers, but he can have but one satisfaction for the same injury, any more than in an action of assumpsit for a breach of contract. Courts everywhere in this country agree that the injured party in such a case may proceed against all the wrongdoers jointly, or he may sue them all or any one of them separately; but if he sues them all jointly, and has judgment, he can not afterwards sue any one of them separately; or, if he sues any one of them separately, and has judgment, he can not afterwards seek his remedy in a joint action because the prior judgment against one is, in contemplation of law, an election on his part to pursue his several remedy.”

5. 6. In this case the appellee having elected to institute a joint action and having secured judgment, he must obtain his satisfaction for the alleged wrong by a judgment in such suit, or not at all by process of law. As supporting the foregoing propositions by analogy, we cite: Baltes v. Bass, etc., Mach. Works, supra. Maple v. Cincinnati, etc., R. Co. (1883), 40 Ohio St. 313, 48 Am. Rep. 685; 15 Cyc. 259. In determining whether the judgment in this case is a final judgment from which an appeal lies, we have given consideration to questions and decisions bearing only indirectly on the jurisdiction of the court to decide this appeal upon its merits. In some decisions the rule that all issues and material facts not found in a special verdict or a special finding will be adjudged against the party who had the burden of proving them was applied in eases where there was a general verdict, to defeat a motion for a venire de novo presented upon the ground [61]*61that there was a failure to find upon some of the issues of the ease, or ,a failure to find for or against some of the defendants. Alexandria Mining, etc., Co. v. Painter (1891), 1 Ind. App. 587, 590, 28 N. E. 113; Board, etc. v. Pearson (1889), 120 Ind. 426, 430, 22 N. E. 134, 16 Am. St. 325. But in the more recent case of Maxwell v. Wright (1903), 160 Ind. 515, 67 N. E.

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Bluebook (online)
108 N.E. 168, 59 Ind. App. 55, 1915 Ind. App. LEXIS 171, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-graves-indctapp-1915.