Curten v. Atkinson

• Decision Date: 20 May 1890
• Citation: 46 N.W. 91,29 Neb. 612
• Parties: JOHN CURTEN ET AL. v. MARIA ATKINSON
• Court: Nebraska Supreme Court

46 N.W. 91

29 Neb. 612

JOHN CURTEN ET AL. v. MARIA ATKINSON

Supreme Court of Nebraska

May 20, 1890

ERROR to the district court for Jefferson county. Tried below before MORRIS, J.

Petition dismissed.

Baker & Freeman, and Cassidy & Wolfe, for plaintiffs in error.

John Saxon, and W. O. Hambel, contra.

OPINION

COBB, CH. J.

This suit is brought on error from the county of Jefferson. The plaintiff in the court below alleged in her petition:

"That on the 12th day of April, 1888, Patrick H. Sheil applied to the commissioners of Jefferson county for a license to sell intoxicating liquors at the village of Daken, in Jefferson county, Nebraska, which license was granted, on condition that the said Sheil execute a bond to the state of Nebraska as by law required, in the sum of $ 5,000 with two good and sufficient sureties; that thereupon, on said 12th day of April, the plaintiffs in error, Curten and Higgins, as such sureties, made, executed, and delivered to said board of commissioners a bond such as by law required, conditioned: If the said Patrick H. Sheil * * * does not violate any of the provisions of chap. 50 of the Compiled Statutes of Nebraska 1887, or any acts amendatory thereto, and shall pay all damages, fines, penalties, and forfeitures which may be adjudged against him under the provisions of said chap. 50, and all the acts amendatory thereto, then this obligation to be null and void, otherwise to be and remain in full force, virtue, and effect; that thereupon said license was issued to said Patrick H. Sheil; that on the 4th day of October, 1888, said license, being in full force and effect, defendant in error was living with her husband, Samuel S. Atkinson, near said village of Daken aforesaid; that the family consisted of herself, her said husband, and two minor children, all of whom were depending on said Samuel S. Atkinson for maintenance; that upon the giving of said bond and obtaining said license the said Patrick H. Sheil began to traffic in intoxicating liquor at the village of Daken, and was so engaged on the said 4th day of October, 1888; that said Sheil, while so engaged in such traffic, did furnish to and for himself, large quantities of said liquor, and did drink the same and did cause and procure his (defendant's) servants, then and there in his employment in and about said trafficking, to give and furnish to him large quantities of such liquors to drink, whereby said defendant became and was for a long time intoxicated, and so continued until said 4th day of October, 1888; that on said 4th day of October, 1888, said Sheil, being drunk and intoxicated from drinking his own liquor, which he furnished to himself, and while so drunk, as aforesaid, did make an assault upon said Samuel S. Atkinson with a revolver and did him, the said Samuel S. Atkinson, there and then shoot and kill, thereby depriving the plaintiff (the defendant in error) of her means of support, to her damage in the sum of $ 5,000; that by reason of the said wrongful acts of the said Sheil, the conditions of the said bond are broken and the defendants Sheil, Curten, and Higgins are jointly liable.

"Wherefore she prays judgment for $ 5,000."

To this petition the plaintiffs in error demurred, for the reason that the petition did not state facts sufficient to constitute a cause of action, which was overruled by the court and the defendants excepted.

The plaintiffs in error, John Curten and Michael Higgins, then filed their separate answer as follows:

"1st. They admit the execution of the bond as alleged.

"2d. They admit the granting of the license.

"3d. But deny each and every other allegation.

"4th. That they are not liable on their bond for the personal wrongs of Sheil, under chap. 50, Compiled Statutes of 1887.

"5th. That the bond was given to protect persons against the wrongs committed by parties to whom said Sheil sold or gave liquor, and not for wrongs committed by Sheil himself.

"6th. That there is a misjoinder of parties defendant; in this, Sheil is improperly joined with Curten and Higgins."

Upon these issues the parties proceeded to trial at the April, A. D. 1889, term of the said district court of Jefferson county, and a judgment was rendered for the defendant in error, and against the plaintiffs in error, for $ 3,600 and costs.

A motion for a new trial being overruled, the plaintiffs in error bring the case to this court for a review of the questions presented to the court below, and alleging that there is error in the proceedings in the court below in this:

1. The damages are excessive, appearing to have been given under the influence of passion and prejudice.

2. There is error in the assessment of the amount of recovery, from the instructions and evidence, that the jury found that the loss of support to defendant in error by the death of her husband was $ 120 per annum for thirty years, as shown by the Carlisle tables, which is in excess of this basis, the present value of which should be found an amount which at legal interest would produce a sum equal to the annual loss of support.

3. The verdict is not sustained by sufficient evidence.

4. And is contrary to law.

5. Errors of law occurring at the trial and excepted to.

6. In giving instructions 1, 2, 3, 4, 4 1/2, 5, 6, 7, 8, 9, of the court's own motion.

7. In refusing to give the 1st and 2d instructions asked by defendants in court below.

8. In excluding the testimony of Patrick H. Sheil, and the offered testimony to prove the partnership of Sheil and Lawrence Roach.

9. In admitting any testimony for the plaintiff in the court below, for the reason that the petition did not state a cause of action against the defendants Curten and Higgins.

10. In overruling the objection to the introduction of any testimony for the plaintiff in the court below, for like reason, and that the suit is not brought by the proper party.

11. In overruling the motion of defendants Curten and Higgins, to instruct the jury to bring in a verdict in their favor.

12. In overruling the motion of defendants in the court below to instruct the jury to bring in a verdict for them, for the reason that the action was not brought in the name of the proper party.

13. The court erred in overruling the motion for a new trial.

To the petition in error of the plaintiffs the defendant answered that they ought not to have their action in error against her because they were the sureties upon the license bond of Patrick H. Sheil, who is not joined with the plaintiffs in prosecuting their petition in error; that said bond was and is an obligation on the part of plaintiffs in error to be responsible for the results of litigation against Sheil, an obligation to pay all damages adjudged against him under the provisions of chap. 50, Comp. Stats. of Nebraska. And said Sheil having, without fraud or collusion, with defendant in error acquiesced in and submitted to said judgment, the plaintiffs cannot maintain their present action against her, but that said judgment is conclusive against them, and they ought not to be heard to question it in this court; that the several matters specified in plaintiffs' petition in error do not constitute error to their prejudice, or their legal rights as sureties upon the bond, after judgment thereon against their principal.

The action in the court below was a joint one against Sheil, Curten, and Higgins, defendants, who were all served with process, all answered, judgment was rendered against all, and all joined in a motion for a new trial.

The petition in error is brought by Curten and Higgins against Maria Atkinson, defendant in error alone. Sheil, the defendant in the court below, is not a party, either as plaintiff or defendant to this proceeding. This point, if necessary to be raised at all, is sufficiently raised by the answer of the defendant in error to the petition; but it is not deemed necessary that it should be raised at all by the defendant in order to interpose an insurmountable objection to the examination of the case on its merits or its reversal in this court. I quote the sections of the Code of Civil Procedure governing the case.

"Sec. 40. All persons having an interest in the subject of the action, and in obtaining the relief demanded, may be joined as plaintiffs, except as otherwise provided in this title.

"Sec. 41. Any person may be made a defendant who has or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the question involved therein.

"Sec. 42. Of the parties to the action, those who are united in interest must be joined as plaintiffs or defendants; but if the consent of one who should have been joined as plaintiff cannot be obtained, he may be made a defendant, the reason being stated in the petition."

These provisions are identical with those of sections 34, 35, and 36 of the Code of Ohio, adopted July 1, 1853, (See Seney's Code, pp. 54, 56, 64.) These sections of the Ohio Code were construed by the supreme court of that state in 1863, in the case of Smetters and Harris v. Rainey et al., 14 Ohio St. 287. In that case the action was brought in the court below against Harris, Jeffries, and Smetters, makers, and Dildine, indorser, of a promissory note. A judgment was rendered jointly against all the defendants. Shortly after judgment Smetters filed his separate petition in error against the plaintiffs Rainey and Julian, to reverse the judgment, without making Harris Jeffries, and Dildine parties to the petition, or assigning any reason for the omission. The cause was reversed by the district court and carried to the supreme court. At the next term of the supreme court a...