Tillett v. Lynchburg & D. R. Co

• Decision Date: 07 May 1895
• Citation: 21 S.E. 698,116 N.C. 937
• Court: North Carolina Supreme Court
• Parties: TILLETT. v. LYNCHBURG & D. R. CO. et al.

21 S.E. 698

116 N.C. 937

TILLETT.

v.LYNCHBURG & D. R. CO. et al.

Supreme Court of North Carolina.

May 7, 1895.

Action against Joint Defendants—Motion for New Trial—Error in Omitting One Defendant's Name.

In an action against the lessor and lessee of a railroad, both defendants were sued jointly, and made a common fight by the same counsel, and a new trial was granted for an error ex cepted to by both. The lessor defendant moved separately for judgment on the verdict, and the lessee defendant for a new trial. The motion for a new trial and the exception to the overruling of the motion were signed by counsel for both defendants, and the appeal was taken by both defendants. Held, that mere inadvertence in entitling the motion for a new trial in behalf of the lessee only was immaterial, and a new trial granted to the lessee inured to both defendants.

On rehearing. Dismissed.

For opinion on appeal, see 20 S. E. 480.

R. O. Burton, Jones & Tillett, and W. W. Kitchin, for petitioner.

Wm. A. Guthrie, for defendants.

CLARK, J. A new trial was granted to both defendants. 115 N. C. 662, 20 S. E. 480. This is a petition to rehear the case, and leave in force the judgment below as to the lessor company. As the case would still go back for a new trial as to the lessee company, we might have this anomalous state of things if the petition were granted: On a new trial below the jury might find either that there was no negligence, or that the plaintiff was guilty of contributory negligence, and there would be a Judgment standing against the lessor for $9,000 and costs for a wrong sustained by the plaintiff through the agency of the lessee, and a verdict and judgment in the same action that the lessee company had done him no wrong, but was entitled to recover costs against him for his false clamor. The court will be slow to so rule as to make possible such a condition. It must clearly appear that the lessor has been guilty of such neglect or failure to except as to put it beyond its power to claim the benefit of the new trial equally with its codefendant. In this case both defendants were represented by the same counsel, and, while separate answers were filed, the lessor company adopted the answer of the lessee, and "relied upon all the defenses therein pleaded." Both defendants excepted to the verdict and judgment. The lessor moved for a judgment in its favor on the verdict, and the lessee for a new trial upon certain grounds assigned in the motion, —among them, the ground on which this court declared there was error below, and which was an exception recited in the motion as having been made by the appellants (in the plural). This motion was signed, "W. A. Guthrie,...