O'Conner v. Force

• Decision Date: 29 April 1910
• Citation: 108 P. 454,58 Wash. 215
• Court: Washington Supreme Court
• Parties: O'CONNER v. FORCE. PAULSON v. SAME.

108 P. 454

58 Wash. 215

O'CONNER v. FORCE.

PAULSON v. SAME.

Supreme Court of Washington

April 29, 1910

Department 1. Appeal from Superior Court, King County; R. B. Albertson Judge.

Actions by Albert O'Conner and J. P. Paulson against R. C. Force administrator. From a single judgment for defendant plaintiffs jointly appeal. Reversed and cause remanded, with instructions to enter judgment on the verdict.

Alexander & Bundy and Cooley & Horan, for appellants.

Richard Saxe Jones, for respondent.

FULLERTON J.

These actions were begun separately, some time in the year 1901 against one Sol G. Simpson to recover for services performed by the respective plaintiffs in doing assessment work on certain mining claims situated in Alaska. They were first tried in 1904 and resulted in judgments of nonsuit at the conclusion of the plaintiffs' evidence; the court holding the evidence insufficient to put the defendant on his proofs. An appeal was taken from one of the judgments and a stipulation entered into between counsel that the other should abide the result. The judgment appealed from was reversed by this court and remanded for a new trial. O'Conner v. Simpson, 37 Wash. 625, 79 P. 1102. Pursuant to the stipulation, the other case was reinstated. In the meantime Sol G. Simpson died, and R. C. Force, administrator of his estate, was substituted as defendant in his stead. The cases were thereupon consolidated for the purposes of this trial by the agreement of counsel and tried as one case before a jury. The jury returned a verdict in favor of each of the plaintiffs for $542.52. The defendant thereupon moved for a judgment in his favor notwithstanding the verdict. This motion the court granted, entering a single judgment dismissing the actions with prejudice and allowing the defendant his costs. From the judgment the plaintiffs appeal. The respondent moves to strike the transcript and statements of facts and dismiss the appeal on the ground that it is an attempt to bring into the court two separate actions by one appeal in a manner not authorized by the statutes relating to appeals. But without following the argument of the respondent we do not think the motion well taken. The actions were consolidated for trial, and the respondent contented himself with one judgment entered in the consolidated action, and we think the appellants were well within the statute when they appealed therefrom as a single judgment affecting them jointly. First National Bank v. Fowler, 51 Wash. 638, 99 P. 1034.

On the merits of the controversy, we think the trial court was in error in granting a judgment notwithstanding the verdict. It is conceded by both the trial judge and counsel for the respondent that the evidence on the part of the appellants is substantially the same as it was in the former trial, which this court held was sufficient to make a prima facie case in their favor. Indeed, so far...