Boswell v. Gates

Adams, Ch. J.

lentoíte*de" The question certified is in these words: “ In a joint action of tort against two defendants, where the jm7 ™ ^avor °f one and against the other, is fb-e plaintiff entitled to judgment against the one against whom the verdict was rendered?”

The defendant insists that this question must be answered in the negative. He relies upon Cogswell v. Murphy et al., 46 Iowa, 44 ; and Barnes & Son v. Ennenga, 53 Iowa, 497 .

The former was an action brought against three defendants jointly for trespass and damage caused .by their cattle. Against the defendants separate judgments were rendered on the ground that each was liable for a separate tort. It was held that this was error, Mr. Justice Seevers in rendering the opinion saying that the plaintiff was entitled to-a joint judgment or nothing,

But the principle involved in that case is different from that involved in this. The court could not properly render separate judgments against the defendants for separate torts committed by each, nor was it for the court to make an election of one of the defendants and render a judgment against him. In the case at bar there was but one tort, and the only objection to the rendition of judgment against L. S. Gates is that it is averred that the tort was committed jointly by him and his wife, who is made co-defendant with him, which averment, so far as the joint character of the tort was concerned, was not proven.

It is true that in Barnes & Son v. Ennenga et al., above cited, the writer of this opinion said in writing the opinion, in that case: “A joint tort having been averred it was incumbent upon the plantiffs to show a joint tort. If they failed, no judgment of any kind should have been rendered.” An examination of the opinion, however, will show that this *145 was said upon a point not raised, and not necessary to the decision. As applied to a case like that of Cosgwell v. Murphy, above cited, the remark would be unobjectionable, but it is not to be approved as an unqualified proposition, and in no view can it be regarded as authority.

The rule undoubtedly is, that where a verdict for damages for tort is rendered against one defendant only, judgment may be rendered thereon, although other persons may have been joined as defendants under an averment that the tort was committed by all the defendants jointly. Carrothers v-Van Hogan, 2 G. Greene, 481.

The appellee, however, insists that no error of the court, if any, can be reviewed, because error is not properly assigned.

The error as we hold consisted in reversing the judgment of the justice of the peace in ruling upon the writ of error. This error, we think, is assigned as specifically as it may be.

In our opinion the judgment of the Circuit Court must be

Reversed.