Bates-Smith Inv. Co. v. Scott
| Citation | 56 Neb. 475,76 N.W. 1063 |
| Parties | BATES-SMITH INV. CO. v. SCOTT. |
| Decision Date | 03 November 1898 |
| Court | Supreme Court of Nebraska |
1. All parties to a joint judgment must be joined in error proceedings therefrom, and a nonjoinder is a fatal defect in the proceedings; but, if the objection is delayed until the final submission of the cause on its merits, the defect is waived.
2. Where a judgment in terms is inclusive of and against two parties in an action in which a several judgment might have been proper, and of one party so embraced by the judgment the court had no jurisdiction, such judgment may be affirmed as to the one defendant of whom there was jurisdiction.
3. Exclusion of testimony as improper during cross-examination examined, and adjudged not erroneous.
4. It is not error to refuse an instruction, the subject-matter of which is fully covered by one given.
Error to district court, Douglas county; Keysor, Judge.
Action by Oscar A. Scott against the Bates-Smith Investment Company and Charles E. Bates. From a judgment before a justice against it alone, the investment company appeals, and from a judgment against both defendants, it brings error. Affirmed.Wright & Thomas, for plaintiff in error.
Smith & Sheean, for defendant in error.
This action was commenced by defendant in error before a justice of the peace of Douglas county to recover of the plaintiff in error and Charles E. Bates the sum of $50, asserted to be his due from them by reason of services by him rendered to them under and by virtue of a contract. In the justice's court the defendant in error was accorded a judgment against the company as follows: “It is therefore considered by me that the said plaintiff recover from the defendant Bates-Smith Investment Company the sum of ($30) thirty dollars, and costs of this suit herein expended, taxed at $3.60.” It will be noticed that there is no reference in the foregoing judgment to Charles E. Bates, his rights, or the disposition of the action, to the extent it was against him. An appeal for the company was perfected to the district court, where, in the petition filed, and the instructions of the court to the jury during the trial, the action was conducted and treated as against the investment company and Bates. There was no answer for Bates, and no appearance by or for him. The verdict was as follows: The judgment was against the company and Charles E. Bates, and each of them. The company presents the case in this court for review.
It is urged for defendant in error that inasmuch as the judgment was against both Charles E. Bates and the investment company, and Charles E. Bates has not been made a party to the error proceedings, there is a defect of parties, which calls for a dismissal of the petition in error. It is true that it is the rule that, in order to secure a review of a joint judgment in error proceedings to this court, all persons interested must be made parties. Polk v. Covell, 43 Neb. 884, 62 N. W. 240;Andres v. Kridler, 42 Neb. 784, 60 N. W. 1014;Consaul v. Sheldon, 35 Neb. 247, 52 N. W. 1104;Curtin v. Atkinson, 36 Neb. 110, 54 N. W. 131. But it has also been held that such defect is waived if the objection is not made before the submission of the cause on its merits. In the case at bar no motion has been made for the dismissal of the proceedings on the ground of defect of parties. The first mention of it appears in the brief for defendant in error on the merits, and is too late to be of any avail. The defect of parties, if any, must be treated as waived.
It is contended for the plaintiff in error that, as there was no judgment in justice court against Charles E. Bates, the appeal of the cause to the district court, which was for the investment company, did not remove the action to the appellate court, to the extent it was against Bates, and involved his rights and liabilities. The court, at the inception of the action, seems to have considered the claim a separable one, and, in accordance with this view, rendered judgment against the investment company alone. It is true, the justice ignored the other party to the suit in its adjudication, but to this there was no objection on the part of any person. The appeal for the company was perfected, and there is no tenable course of reasoning from which it can be concluded that Charles E. Bates was a party to the action during its pendency and trial in the district court. The district court had no jurisdiction of him, and the judgment, to the extent it was against him, was a nullity. But he is not here complaining. The error proceedings are for the company, which had appealed the action, and submitted itself to the jurisdiction of the court.
It is contended for the company that a judgment is an entirety, and if against two or more, and either erroneous or void as to one party, and for such reason subject to be vacated or reversed, the action must be, in regard to it, as an entirety; that it cannot be good as to one, and bad as to another or others, and will not be so held. Black, Judgm. § 211, and cases cited in notes 146, 147; 11 Enc. Pl. & Prac. 858, note 1. The doctrine of entirety of a judgment is one of the common law, and has been pushed to the extreme; but by many courts the rule has been announced that such a judgment may be voidable or void as against one defendant, but binding on another or others, in a collateral attack. Black, Judgm. § 211, note 148; 11 Enc. Pl. & Prac. 859, note 2. The weight of authority seems to favor the doctrine that in appeal or error proceedings such judgment must be, as an entirety, affirmed or reversed as to all parties, and cannot be severed. Black, Judgm. § 211, note 151; 11 Enc. Pl. & Prac....
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