Smith v. Graves, No. 8394.

Docket NºNo. 8394.
Citation59 Ind.App. 55, 108 N.E. 168
Case DateJanuary 19, 1915
CourtCourt of Appeals of Indiana

59 Ind.App. 55
108 N.E. 168

SMITH et al.
v.
GRAVES.

No. 8394.

Appellate Court of Indiana, Division No. 1.

Jan. 19, 1915.


Appeal from Circuit Court, Miami County; Joseph N. Tillett, Judge.

Action by Warren W. Graves against Mortimer Smith and others. From a judgment for plaintiff, defendants appeal. Appeal of defendant Kocher dismissed, and judgment affirmed as to the other defendants.

[108 N.E. 169]


Frank D. Butler, Laurence & Rhodes, and T. W. Annabal, all of Peru, for appellants.
Reasoner & Ward, of Peru, for appellee.

FELT, J.

This is a suit by appellee, Warren W. Graves, against appellants Mortimer Smith, Levi Bowser, and Ned Kocher, to recover damages for alleged malicious prosecution of appellee on a charge of bribing a voter at the election in 1908. The complaint was in six paragraphs on which issues were joined against all the defendants by general denial. The case was tried by a jury, and resulted in a verdict as follows:

“We, the jury, find for the plaintiff, Warren W. Graves, against the defendants Mortimer Smith, Levi Bowser, and we assess plaintiff's damages at $1,000.”

Appellants Smith and Bowser filed a joint and several motion for a new trial. All the appellants thereafter filed motion for a venire de novo, which was overruled by the court and excepted to by the defendants. Thereupon the court overruled the motion for a new trial, to which the “defendants each separately and severally excepted.” Appellants Smith and Bowser separately and severally moved to arrest the judgment, which motion was overruled, and “the defendants each separately and severally excepted.” Thereupon the court rendered judgment as follows:

“It is now therefore ordered adjudged, and decreed by the court that the plaintiff have and recover of and from the defendants Mortimer Smith and Levi Bowser the sum of $1,000 as damages herein, to which adjudgment of the court said defendants separately and severally except.”

The record shows that each of the defendants prayed and was granted an appeal. The appeal bond recites that Smith and Bowser have taken an appeal from the judgment of $1,000 rendered against them in favor of appellee. Error has been separately assigned in this court by each of the three appellants. No motion has been filed to dismiss the appeal, but the foregoing facts are shown both by the briefs and by the record. The question of the court's jurisdiction of the appeal must therefore be determined before the merits of the appeal can be considered. The record suggests the question, Is there a final judgment from which an appeal lies? The jury did not find either for or against Mr. Kocher, and no judgment was rendered either for or against him.

[1] A final judgment is one that disposes of all the issues, as to all the parties involved in the controversy presented by the pleadings, to the full extent of the power of the court to dispose of the same. Wehmeir v. Mercantile Banking Co., 49 Ind. App. 454-456, 97 N. E. 558;Barnes v. Wagener, 169 Ind. 511-514, 82 N. E. 1037;Crow v. Evans, 178 Ind. 661, 662, 100 N. E. 8.

[2] When several persons are defendants and the jury finds for part and against part of such defendants, on appeal by the defendants against whom judgment was rendered, the defendants who obtained a verdict and judgment in their favor are neither necessary nor proper parties to the appeal. Town of Windfall v. First Nat. Bank, 172 Ind. 679-686, 87 N. E. 984, 89 N. E. 311;Southern Ry. Co. v. Elliott, 170 Ind. 273-276, 82 N. E. 1051;Hubbard v. Burnet-Lewis Lumber Co., 51 Ind. App. 97-99, 98 N. E. 1011.

But the foregoing proposition is only relatively important here for the reason that there is here no judgment either for or against Mr. Kocher.

[3][4][5] The action is in tort, and appellee can have but one satisfaction for the damage, if any, sustained by him. The liability of the appellants as tort-feasors is several and the suit may be maintained against all or one, or any number of them. There is no right of contribution that can be enforced as between such defendants or persons liable for the same tort. A satisfaction of such claim for damages obtained from one or any number of such defendants or persons so liable for the same tort ends all liability therefor as against any and all persons against whom liability might have been enforced before

[108 N.E. 170]

such satisfaction was obtained. American, etc., Co. v. Patterson, 73 Ind. 430-436;Baltes v. Bass Foundry Works, 129 Ind. 185-188, 28 N. E. 319;City of Valparaiso v. Moffitt, 12 Ind. App. 250-253, 39 N. E. 909, 54 Am. St. Rep. 522.

[6] As a general rule, a joint tort-feasor against whom judgment had been rendered cannot complain that judgment was not also obtained against a coparty to the suit. 2 Ruling Case Law, §§ 195-234; Burroughs v. Eastman, 101 Mich. 419, 59 N. W. 817, 24 L. R. A. 858, 45 Am. St. Rep. 419.

[7] While a person injured by joint tort-feasors may maintain separate suits against each person who aided in the commission of the tort, yet if he elects to sue them jointly and obtains a judgment in such action, he cannot afterwards maintain separate suits against such persons, but is compelled to abide by the result of such suit.

In Black on Judgments, vol 2 (2d Ed.) § 780, it is stated:

“The plaintiff who is injured by a tortious act shared in by several must elect whether he will prosecute them all in a joint action, or sue one or more separately. He cannot do both.”

In Sessions v. Johnson, 95 U. S. 347, page 348 (24 L. Ed. 596) the court say:

“Where a trespass is committed by several persons, the party injured may sue any or all of the wrongdoers, but he can have but one satisfaction for the same injury, any more than in an action of assumpsit for a breach of contract. Courts everywhere in this country agree that the injured party in such case may proceed against all the wrongdoers jointly, or he may sue them all or any one of them separately; but if he sues them all jointly, and has judgment, he cannot afterwards sue any one or them separately, or, if he sues any of them separately, and has judgment, he cannot afterwards seek his remedy in a joint action, because the prior judgment against one is, in contemplation of law, an election on his part to pursue his several remedy.”

In this case, the appellee having elected to institute a joint action and having secured judgment, he must obtain his satisfaction for the alleged wrong by a judgment in such suit or not at all by process of law.

As supporting the foregoing propositions by analogy, we cite Bales v. Bass Foundry, etc., Works, supra; Maple v. Railway Co., 40 Ohio St. 313, 48 Am. Rep. 685; 15 Cyc. p. 259.

[8] In determining whether the judgment in this case is a final judgment from which an appeal lies, we have given consideration to questions and decisions bearing only indirectly on the jurisdiction of the court to decide this appeal upon its merits.

In some decisions the rule that all issues and material facts not found in a special verdict or a special finding will be adjudged against the party who had the burden of proving them was applied, in cases where there was a general verdict, to defeat a motion for venire de novo, presented upon the ground that there was a failure to find upon some of the issues of the case, or a failure to find for or against same of the defendants. Alexandria Mining, etc., Co. v. Painter, 1 Ind. App. 587-590, 28 N. E. 113; Board v. Pearson, 120 Ind. 426-430, 22 N. E. 134, 16 Am. St. Rep. 325. But in the more recent case of Maxwell v. Wright, 160 Ind. 515, 67 N. E. 267, the subject is considered at length, the authorities reviewed, and the conclusion reached that the rule has no application to cases where there is a general verdict, or a general finding. To same effect is Douglas v. Indianapolis, etc., Co., 37 Ind. App. 332-335, 76 N. E. 892. In Maxwell v. Wright, supra, the court states that the reason for the rule that a failure to obtain a finding is equivalent to a finding against the...

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27 practice notes
  • State v. Tuesburg Land Co., No. 8794.
    • United States
    • Indiana Court of Appeals of Indiana
    • June 25, 1915
    ...application of such doctrine and to the time of such conveyance, and not to a remote time or conveyance. Irvin v. Crammond (Ind. App.) 108 N. E. 168;Ocean City Ass'n v. Shriver, 64 N. J. Law, 530, 559, 46 Atl. 690, 51 L. R. A. 425;Johnston v. Jones, 1 Black, 209, 221, 17 L. Ed. 117;James v.......
  • Gaeth v. Hack , No. 15460.
    • United States
    • Indiana Court of Appeals of Indiana
    • June 14, 1937
    ...v. Leich (1906) 37 Ind.App. 393, 76 N.E. 926;Jenkins v. Steele (1913) 55 Ind.App. 11, 102 N.E. 139, 103 N.E. 365;Smith v. Graves (1915) 59 Ind.App. 55, 108 N.E. 168; Ewbank's Manual of Practice, § 219a; Catherwood v. McIntyre (1934) 99 Ind.App. 220, 192 N.E. 109. [8 N.E.2d 1023] [2][3] The ......
  • Johnson v. Brady, No. 8627.
    • United States
    • Indiana Court of Appeals of Indiana
    • June 15, 1915
    ...in a malicious prosecution all concerned in the originating and carrying it on are jointly and severally responsible. Smith v. Graves, 108 N. E. 168; 1 Cooley on Torts (3d Ed.) 342; 19 Am. & Eng. Ency. of Law (2d Ed.) p. 692. [6] It is also true that it is not necessary to prove that the de......
  • McClish v. Niagara Machine & Tool Works, No. IP 65-C-540.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)
    • March 29, 1967
    ...1882, 82 Ind. 488; American Express Company v. Patterson, 1881, 73 Ind. 430; Hunt v. Lane, 1857, 9 Ind. 248; Smith v. Graves, 1915, 59 Ind.App. 55, 108 N.E. 6 Silvers v. Nerdlinger, 1868, 30 Ind. 53; City of Gary v. Bontrager Construction Co., 1943, 113 Ind.App. 151, 47 N.E.2d 182. 7 Indian......
  • Request a trial to view additional results
27 cases
  • State v. Tuesburg Land Co., No. 8794.
    • United States
    • Indiana Court of Appeals of Indiana
    • June 25, 1915
    ...application of such doctrine and to the time of such conveyance, and not to a remote time or conveyance. Irvin v. Crammond (Ind. App.) 108 N. E. 168;Ocean City Ass'n v. Shriver, 64 N. J. Law, 530, 559, 46 Atl. 690, 51 L. R. A. 425;Johnston v. Jones, 1 Black, 209, 221, 17 L. Ed. 117;James v.......
  • Gaeth v. Hack , No. 15460.
    • United States
    • Indiana Court of Appeals of Indiana
    • June 14, 1937
    ...v. Leich (1906) 37 Ind.App. 393, 76 N.E. 926;Jenkins v. Steele (1913) 55 Ind.App. 11, 102 N.E. 139, 103 N.E. 365;Smith v. Graves (1915) 59 Ind.App. 55, 108 N.E. 168; Ewbank's Manual of Practice, § 219a; Catherwood v. McIntyre (1934) 99 Ind.App. 220, 192 N.E. 109. [8 N.E.2d 1023] [2][3] The ......
  • Johnson v. Brady, No. 8627.
    • United States
    • Indiana Court of Appeals of Indiana
    • June 15, 1915
    ...in a malicious prosecution all concerned in the originating and carrying it on are jointly and severally responsible. Smith v. Graves, 108 N. E. 168; 1 Cooley on Torts (3d Ed.) 342; 19 Am. & Eng. Ency. of Law (2d Ed.) p. 692. [6] It is also true that it is not necessary to prove that the de......
  • McClish v. Niagara Machine & Tool Works, No. IP 65-C-540.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)
    • March 29, 1967
    ...1882, 82 Ind. 488; American Express Company v. Patterson, 1881, 73 Ind. 430; Hunt v. Lane, 1857, 9 Ind. 248; Smith v. Graves, 1915, 59 Ind.App. 55, 108 N.E. 6 Silvers v. Nerdlinger, 1868, 30 Ind. 53; City of Gary v. Bontrager Construction Co., 1943, 113 Ind.App. 151, 47 N.E.2d 182. 7 Indian......
  • Request a trial to view additional results

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