Richards v. Scott

• Decision Date: 07 June 1901
• Citation: 65 P. 433,7 Idaho 726
• Parties: RICHARDS v. SCOTT
• Court: Idaho Supreme Court

65 P. 433

7 Idaho 726

RICHARDS v. SCOTT

Supreme Court of Idaho

June 7, 1901

FILING OF OBJECTION TO RECORD.-Under provisions of rule 17 of this court, objections to the record must be noted in writing and filed one day before the argument of the case, and unless so filed must be disregarded.

SEVERAL VERDICTS-JOINT JUDGMENT.-In a joint action against numerous defendants, where a several verdict is found, it is error to enter a joint and several judgment.

COSTS.-Under the provisions of sections 4901 and 4904 of the Revised Statutes, where the plaintiff sues for damages and recovers less than $100 he cannot recover his costs.

(Syllabus by the court.)

APPEAL from District Court, Fremont County.

Cause remanded, with instructions. Costs of this appeal awarded to the appellants.

P Averitt and Hawley & Puckett, for Appellants.

An action may be maintained wherever a plaintiff is damaged by unlawful acts of defendants in pursuance of a combination and conspiracy for such purpose. While it may be urged that the combination or conspiracy is not the gist of the action, and that it need not be alleged although capable of proof and a proper matter to prove; and that even if it is alleged, that if the proof shows only one, and not all, of the defendants were concerned that a recovery may be had against that one concerned as if he had been sued alone; still, if the wrong becomes actionable only because of the lawful combination then the conspiracy must be proved as a material matter. (Severinghaus v. Beckman, 9 Ind.App. 388, 36 N.E 930; Jenner v. Garson, 111 Ind. 522, 13 N.E. 44; Rundell v. Kalbfus, 125 Pa. 123, 17 A. 238; Collins v. Cronin, 117 Pa. 35, 11 A. 869.) No valid judgment could be entered against the defendants, or either or any of them, under the verdict, by reason of the verdict finding against each of them in different amounts. (Black on Judgments, 207.) Our statute, however, changes the common-law rule. (Rev. Stats., sec. 4351.) Section 4552 prescribes: "In an action against several defendants, the court may in its discretion, render judgment against one or more of them, leaving the action to proceed against the others, whenever a several judgment is proper." (Gaffney v. Hoyt, 2 Idaho 199, 10 P. 34; People etc. v. Frisbie, 18 Cal. 402.) It is a universal rule that in suit against joint trespassers the damages must be assessed jointly against all who are found guilty; they cannot be severally assessed, as a satisfaction to one is a satisfaction to all. (Thompson v. Albright (Tex. App.), 14 S.W. 1020; Fields v. Williams, 91 Ala. 502, 8 So. 808; Perine v. Deans, Tappan (Ohio), 236; McGehn v. Shafer, 15 Tex. 198; Markham v. Nav. Co., 73 Tex. 247, 11 S.W. 131; 1 Sutherland on Damages, 211; Freeman on Judgments, 3d ed., 236.) The judgment for costs cannot be sustained. The judgment herein assesses the costs at $ 455.10, and adjudges such costs shall be equally apportioned between the several defendants. The costs, as shown by the memorandum of costs and disbursements are for expenditures made in the suit generally and not as against any particular defendant. We contend, the judgment herein is, in reality, six several judgments, against six defendants severally, the amount of each of these judgments is less than $ 100. In either view of the matter costs could not be imposed upon the defendants, or either or any of them, as section 4900 and 4904 of the Revised Statutes prohibits this.

N. H. Clark, for Respondent.

The supreme court of Colorado in Saint v. Guerrerio, 17 Colo. 448, 30 P. 335, 31 Am. St. Rep. 320, says: "To prevent a failure of justice in cases of this kind the prior appropriator cannot properly be required to assume any such risk or burdens; but he may bring and maintain an action jointly against all parties junior in right to himself, whenever the result of their acts either joint or several, deprive him of his better right to the use of the water." (Hillman v. Newington, 57 Cal. 56.) The contention that the verdict and judgment could not be against defendants in different amounts, is not, we contend, well taken. We claim the verdict finds against each, and assesses the damage to each according as his acts caused the damage; in all $ 300. We contend under our practice that the plaintiff may recover separate amounts against defendants joined in one action. (Aulbach v. Dahler, 4 Idaho 522, 43 P. 192.) There is no difference under our code as to actions ex delicto and ex contractu. (Hewett v. Maize, 5 Idaho 633, 51 P. 609.) We contend that the question that plaintiff is entitled to costs cannot be questioned on this appeal. (Emery v. Langley, 1 Idaho 695.)

SULLIVAN, J. Quarles, C. J., and Stockslager, J., concur.

OPINION

SULLIVAN, J.

This is an action to recover damages for alleged wrongful acts of defendants in diverting certain water to their own use which belonged to the plaintiff. The complaint states two causes of action. Under the first it is alleged that the damage sustained by the plaintiff amounted to $ 1,038.50, and under the second the damage is placed at $ 1,089. It is alleged that the defendants (who are appellants) acted jointly in the wrongful diversion of said water. The appellants answered jointly, and put in issue all of the allegations of the complaint, and denied that they acted jointly or otherwise. The cause was tried by the court with a jury. The jury returned the following verdict: "We, the jury in the above-entitled action, find for plaintiff, and assess his damages as follows: Against W. A. Scott, $ 25 against George Ballard, $ 25; against M. Kaufman, $ 80; against Henry Kaufman, $ 80; against Edward Kaufman, $ 80; against Samuel Goddard, $ 10. Good Rasmussen. S. C. Drollinger. Jesse Clark. Richard Later. George Webster. Floyd G. Longley. William Hill. J. E. Galbraith. S. G. Chandler. S.W. Orme. S. R. McBee. M. M. Hammond. Filed March 8th, 1900." Thereupon respondent filed his cost bill, claiming the sum of $ 455.10, and the court rendered judgment on said verdict as follows: "Wherefore, by virtue of the law and by reason of the premises aforesaid, it is ordered, adjudged, and decreed that said John R. Richards have and recover from said ...