Louisville, N.A.&C. Ry. Co. v. Treadway

• Decision Date: 06 November 1895
• Citation: 142 Ind. 475,41 N.E. 794,143 Ind. 689
• Parties: LOUISVILLE, N. A. & C. RY. CO. et al. v. TREADWAY.
• Court: Indiana Supreme Court

142 Ind. 475

143 Ind. 689

41 N.E. 794

LOUISVILLE, N. A. & C. RY. CO. et al.

v.TREADWAY.

Supreme Court of Indiana.

Nov. 6, 1895.

On motion for rehearing. Denied.

For former opinion, see 40 N. E. 807.

MONKS, J.

An earnest and able petition for rehearing has been filed by the Monon Company. It is claimed “that this court erred in reversing the judgment as to the Clover Leaf Company, and affirming it as to the Monon Company, because a judgment at law cannot be reversed as to one joint defendant, and affirmed as to the other.” The authorities cited by appellant in support of the rule asserted can have no force in this state, for the reason that the question is regulated by our Code of Civil Procedure. Section 570, Rev. St. 1881 (section 579, Rev. St. 1894), provides, “Though all the defendants have been summoned, the judgment may be rendered against any of them severally, when the plaintiff would be entitled to judgment against such defendants if the action had been against them severally.” Section 568, Rev. St. 1881 (section 577, Rev. St. 1894), provides, “Judgment may be given for or against one or more of several plaintiffs and for or against one or more of several defendants, and it may, when the justice of the case requires it, determine the ultimate rights of the parties on each side as between themselves.” Section 569, Rev. St. 1881 (section 578, Rev. St. 1894), provides that “in a suit against several defendants the court may in its decision render judgment against one or more of them leaving the action to proceed against the others whenever a several judgment is proper.” Under these sections it has been held by this court that the trial court possessed chancery powers in adapting its judgment to the rights of the parties (Draper v. Van Horn, 12 Ind. 352;Douglass v. Howland, 11 Ind. 554;Cutchen v. Coleman, 13 Ind. 568); that if a plaintiff sue two or more jointly, and only prove a liability as to one, he is entitled to a judgment against that one (Stafford v. Nutt, 51 Ind. 535, and cases cited on page 538; Railway Co. v. Duvall, 40 Ind. 246; Thornt. & B. Ann. Ind. Prac. Code, §§ 568-570, and notes). In Lower v. Franks, 115 Ind. 334, on page 337, 17 N. E. 630, this court, in speaking of the foregoing sections of the Code of Civil Procedure, said: “In the case of Hubbell v. Woolf, 15 Ind. 204, following the case of Blodget v. Morris, 14 N. Y. 482, it was held, in terms, that this provision of the Code applies to all actions indiscriminately, whether founded upon contract or upon tort; that it is immaterial whether the complaint alleges a joint, or a joint and several, liability; that the right of recovery is, in this respect, to be regulated by the proof, and not by the allegations of the complaint. In other words, every complaint is, in the respect stated, to be treated as both joint and several when there are two or more defendants. That the object of the provision, obviously, is to prevent a plaintiff who proves a good cause of action against part of the defendants, but not against all, from being put to the expense and delay of a new action.” In this case each appellant separately moved the court below to render judgment in its favor, which motions were each overruled, and judgment rendered against both appellants. The Clover Leaf's motion for a judgment in its favor on the special verdict should have been sustained, and judgment rendered by the court accordingly. The mandate of this court merely directs the court below to render the judgment that should have been rendered in the first instance. The Monon Company is in the same situation as if the court had sustained the motion of the Clover Leaf Company, and rendered judgment in its favor, and the Monon Company had alone prosecuted this appeal. Besides it is expressly provided by statute that this court may reverse a case in whole or in part. Rev. St. 1881, §§ 660, 661 (Rev. St. 1894, §§ 672, 673). It has been uniformly held by this court, since the Code of Civil Procedure took effect, in 1853, that a case may be reversed as to a part of the appellants, and affirmed as to others, and such has been the uniform practice. Railway Co. v. Duvall, supra; Steeple v. Downing, 60 Ind. 478, 503, 504;Dodge v. Dunham, 41 Ind. 186;State v. Mills, 82 Ind. 126; Lower v. Franks, supra; Railway Co. v. Robbins, 128 Ind. 449, 26 N. E. 116;Haxton v. McClaren, 132 Ind. 235, 31 N. E. 48;English v. Aldrich, 132 Ind....