New Mexico & S.P.R. Co. v. Madden

• Decision Date: 23 August 1893
• Citation: 34 P. 50,7 N.M. 215,1893 -NMSC- 018
• Parties: NEW MEXICO & S. P. R. CO. v. MADDEN.
• Court: New Mexico Supreme Court

34 P. 50

7 N.M. 215, 1893 -NMSC- 018

NEW MEXICO & S. P. R. CO. v. MADDEN.

Supreme Court of New Mexico

August 23, 1893

Error to district court, Bernalillo county; William D. Lee, Judge.

Action in tort by James H. Madden against the New Mexico & Southern Pacific Railroad Company and another. Plaintiff had judgment and the defendant the New Mexico & Southern Pacific Railroad Company brought error, which plaintiff now moves to quash. Motion denied, and judgment directed.

Henry L. Waldo, for plaintiff in error.

H. L Warren, for defendant in error.

FALL J.

This is upon error from Bernalillo county, and the cause is submitted upon motion of defendant in error to quash the writ, and also upon the merits. The motion to quash is based upon the ground that the suit was against both plaintiff in error and the Atchison, Topeka & Santa Fe Railroad, while the cause was submitted and judgment really rendered only against the latter, or the Atchison, Topeka & Santa Fe Railroad Company. It is also contended that, if the judgment was against both then, without notice of severance, both should have sued out writ. The record is confused. The action was against both parties mentioned, and each pleaded. The cause was numbered 2,691, and upon the record is at times indorsed "James H. Madden vs. New Mex. & Southern Pac. R. R. Co.;" at other times, "N. M. & S. P. R. R. Co. et al.;" again, "Madden vs. A. T. & S. F. R. R. Co.," etc. No severance was had, and no dismissal entered. The jury "find for the plaintiff," and the first judgment is against the "defendant" in the cause No. 2,691 indorsed "James H. Madden vs. New Mexico & Southern Pacific Railroad Co. et al.;" and afterwards appears another judgment against the "defendants," the entry being indorsed "James H. Madden vs. New Mexico & Southern Pacific Railroad Co. and the A. T. & S. F. R. R. Co., No. 2, 691." Motions are made, and instructions asked, sometimes in the name of the defendant, and again of defendants. From a careful examination of the record, it would appear that the cause proceeded against both defendants to judgment. When singular appears, it can be construed as plural, and vice versa. Section 1851, Comp. Laws N.M. This being an action of tort, judgment might be rendered against both or either party, and either party, upon proper proceeding, is entitled to review, while the other may pursue the course dictated by his own judgment. The judgment being against the plaintiff in error, writ properly sued out, and no notice of severance necessary, motion to quash writ is overruled. 1 Black, Judgm. § 207, and cases cited.

Plaintiff in error assigns...