CASH 33 — PETITION ORDINARY

SEPTEMBER 30.

#### Buckles, &c. vs. Lambert.

APPEAL PROM THE HARDIN CIRCUIT COURT.

1. The court of appeals will not reverse a judgment on account of the error of the circuit court in refusing, on motion, to strike out irrelevant or redundant matter in a pleading, if it do not appear that the appellantwas prejudiced thereby. *(Civil Code, sec s.*147, 161.)

*2.*The decision in *Waller, &c. vs. Martin,*(17 *B. Mon.,*188,) that, in an action *ex delicto*against several defendants, some of whom were, and some of whom were not* summoned, there could be a trial as to the former, and judgment against them, without any disposition of the' case as to the latter, is, in effect, overruled by the decision in *Hedger vs. Downs, (2 Met.,*160.) This ruling does not apply where all are summoned. *(Civil Code, sec.*402.)

3. If several persons jointly commit a tort the plaintiff, in general, has his election to sue all or some of the parties jointly, or one of them separately. This rule has not been changed by the Civil Code.

4. In an action against several defendants, for assault and battery, they filed separate answers^ a joint verdict was rendered against them, and judgment entered ac-*331oordingly. A new trial was granted as to one, (an infant, because no guardian *ad litem*bad been appointed,) and refused as to the others, against whom the judgment was allowed to stand for the sum named in the verdict. The judgment is *affirmed,*(Judge Williams dissenting.) *(Civil*Code, sec. 402; 15 JB. *Mon.,*547.)

5. See the dissenting opinion of Judge Williams.

Harlan & Harlan, for appellant,

cited 3 ilia?-., 337; 16 *B. Mon.,*356; 4 *J. J. Mar.,*269; 4 *Litt.,*134; 3 *Mon.,*137; 1 *J. J. Mar.,*198; *Civil Code, sec.*399.

Wilson, on same side,

cited 3 *Mar.,*337; 16 *B. Mon.,*356; 4 *J. J. Mar.,*269; 4 *Litt.,*134; 3 *Mon.,*137; 1 *J. J. Mar.,*198. C. G. Wintersmith, for appellee, cited *Civil Code, secs.*347, 398; 17 *B. Mon.,*188; *Fleety vs. Bell, Mss. Opin., December,*1855.

JUDGE BULLITT

delivered the opinion op the court: (Judge Williams dissenting.)'

Lambert sued Ambrose Buckles and the appellants, John and James Buckles, for an assault and battery. They filed separate answers. The jury found a joint verdict against them for $825, and a judgment was entered accordingly. On the same day the defendants moved for a new trial, which was granted to Ambrose, because he was an infant and no guardian *ad litem*had been appointed for him, and refused to John and James, against whom the judgment was allowed to stand for the sum named in the verdict. To reverse that judgment they appeal.

We need not consider the instructions, as the bill of exceptions does not show that the appellants excepted to the action of the court with reference to them.

James Buckles made his answer a counter-claim against Lambert, who filed a reply thereto, not merely denying its allegations, but giving a detailed statement concerning the origin and progress of the difficulty between him and the defendants. They moved to strike out part of the reply, upon the ground that it contained irrelevant matter, and it is contended that the court erred in overruling that motion.

*Section*147 *of the Code,*which declares, that, “if irrelevant or redundant matter is inserted in a pleading, it may be stricken out; on motion of any person aggrieved thereby, at *332the cost of the party whose pleading contained it,” is an enactment of an old rule of practice, which made it the duty of the court to strike out irrelevant or redundant matter, upon a motion made for that purpose. In our opinion, that part of the reply, which the defendants moved to strike out, contains irrelevant and redundant matter, and their motion should have prevailed. But we cannot reverse the judgment on account of the error of the court in overruling it, because we do not perceive that the defendants were prejudiced thereby. We are required to “disregard any error or defect in the proceedings, which does not affect the substantial rights of the adverse party.” *(Code, see.*161.) It is contended, however, that the jury may have regarded those statements of the reply as evidence for the plaintiff. But it is clear that they had no right to do so, and we cannot assume that they violated their duty.

It is contended that the court erred in rendering a judgment against the appellants, without disposing of the cause as to the other defendant.

We have no doubt that this would have been erroneous under the old practice; but, in our opinion, the practice has been changed by the Code.

*Section*392 declares, that “an action upon contract, wherein the summons has been served in due time, as provided in *section*135, upon part only of the defendants, shall stand for trial at the first term as to those so summoned, and may be continued as to the others for further proceedings. In other actions, by ordinary proceedings, the plaintiff can only demand a trial at any term, as to part of the defendants, upon his discontinuing his action on the first day of such term as to the others.”

In an action *ex delicto*against several defendants, some of whom were, and some of whom were not, summoned, there was a trial as to the former anda judgment against them, without any disposition of the case as to the latter; and it was held, that,“as the plaintiff might have maintained his suit against any number of the defendants, and was, by the Code, entitled to a judgment against some without disposing of the case finally as to others, it is no available objection to the judgment that no notice is taken of the defendants, who were *333not served with process, and no express disposition made of the case as to them.” *(Waller, &c. vs.*Martin, 17 *B.. Mon.,*188.) But that decision was, in effect, overruled in a similar case, in which it was held that the provisions above cited, from *section*392, apply only to cases in which some of the defendants have been summoned and others not summoned, and that in actions *ex delicto*itis erroneous to render a judgment against the former, without discontinuing the case as to the latter on the first day of the term. *(Hedger vs. Downs,*2 *Met. Ky. Rep.,*160.) Those provisions, therefore, do not apply to the case under consideration, because here all the defendants were summoned.

But we do not perceive how this case can be relieved from the operation of *section*402, which declares that, “though all the defendants have been summoned, judgments may be rendered against any of them severally, where the plaintiff would be entitled to judgment against such defendants if the action had been against them alone.”

In view of the context, our opinion is, that this section does not require separate judgments against each defendant, but that it authorizes several separate or joint judgments against one or more of the defendants, as the case may require.

By the common law, “if several persons jointly commit a tort, the plaintiff, in general, has his election to sue all or some of the parties jointly, or one of them separately, because a tort is in its nature a separate act of each individual.” (1 *Ch Pl.,*86.). This rule has not been changed by the Code. As Lambert could have sued the appellants alqne, and would, in such an action, have been entitled to a judgment against them for the damages he sustained, they have no right to complain because Ambrose Buckles was not included in the judgment.

It has been suggested that the judgment is erroneous because it does not conform to the verdict, which was against all the defendants, whilst the judgment is against two only. But a majority of the court,' (Judge Williams dissenting.) regard the decision in *Shelton, &c. vs. Harlow,*(15 *B. Mon.,*547,) as conclusive upon this question. That was an action for damages against four defendants. The jury found a joint verdict *334against them. Upon their motion for a new trial, the cohrt, being of the opinion that there was no evidence against one of them, put the plaintiff upon terms that the suit should be dismissed as to him, which was done, and a judgment was rendered against the others for the amount of the verdict; and the judgment was affirmed.

Whether or not Lambert can now proceed against Ambrose Buckles, is a question upon which wre express no opinion.

in view of the evidence, we cannot reverse the judgment upon the ground that the damages are excessive.

The judgment is affirmed.

JUDGE WILLIAMS,

dissenting from the opinion of the majority of the court, delivered the following opinion:

With all due deference to the majority of the court, I must dissent from the opinion in this case.

By the rules of the common law, juries were not authorized to give several damages in a joint action against trespassers, save in a very peculiar class of cases where a joint action against several trespassers could be maintained. *(See*3 *Mon.,*137; 1 *J. J. Mar.,*361; 4 *J. J. Mar.,*269.)

If the jury should assess several damages against joint trespassers, the plaintiff might either take a judgment against all for the amount of some one assessment, and disregard the others; or, he might remit all but the one, and take a joint judgment for that; or, he might dismiss the parties, not included in the assessment, that he should elect to take judgment on. This was evidently founded on the principle of law that each joint trespasser was liable for the whole trespass; and, the jury having found all guilty, should have found a joint,verdict. Consequently there was no violence done either defand-antin rendering judgment for the amount of either one of the assessments.

Experience had shown that parties who had barely committed acts sufficient to convict them of being joint trespassers were often mulct in heavy damages by reason of the lawless conduct of some co-defendants, whilst, on the other hand, plaintiffs were some times deprived of heavy damages against lawless defendants, because some co-defendant’s conduct was *335of such character as to disincline. the jury to award heavy damages against him. To avoid those hardships to the parties, the Legislature, by the act of 1839, (3 *Stat.,*573,) author-ises several damages; and which enactment is still in force.

In *Shelton, &c. vs. Harlow,*(15 *B. Mon.,*547,) three defendants were jointly sued. The evidence connected two, but there was no evidence against Roberts; yet the jury gave a joint verdict, (perhaps through mistake or inadvertency.) On a motion for a new trial the court put the plaintiif to her election to dismiss as to Roberts, else give a new trial. She having elected to dismiss, the motion as to the others was overruled. The verdict in this case should have been against the two defendants proven guilty. As Roberts was not proven guilty, it was im-impossible that his being a defendant, or that his conduct, should have enhanced the damages. Therefore the guilty defendants had no right to complain, because the judgment was upon the verdict, as the law required it should have been rendered, and fully sustained, in analogy to that principle alluded to, which authorised a plaintiff to take his judgment on either, where there were several assessments.

In the- case under advisement, the evidence established the guilt of all the defendants; the jury found a joint verdict for $825. The number and conduct of all the defendants, and that it-was a final finding as to all, was considered by the jury, and well calculated to enhance the damages; the plaintiff bad-gotten the advantage of all these, and the jury awarded to him full damages in consideration thereof. Yet by an irregularity of his own, in not having a guardian *ad litem*appointed for a minor defendant, his verdict and judgment are defective

The court below, granted to the minor a new trial, without putting the plaintiff on his election, and overruled the motion for a new trial as to the other defendants; The judgement is certainly a departure from the verdict, and this departure not to sustain any known principle of law, but in contravention thereof. It is not to make the judgment conform to what the verdic should have been, for there is no legal standard by which to say what the verdict would have been, or should have been, had not this minor defendant also been put on trial.

*336The jury have, said in their verdict that plaintiff should recover against all these defendants $825. The court has said, by its judgment, that he shall recover against two of the defendants $825 — and may hereafter recover of the other defendant another $825 — if a jury shall so award; for, in answer to this, it will not do to say that the judgment bars further proceedings as to the minor defendant. This court has virtually decided otherwise in the case of *Green vs. Redman, Mss. opin., Oct.,*1857.

It is attempted to uphold this judgment by virtue of *sec.*402 *Civil Code,*which is in these words: “Though all the defend'ants have been summoned, judgment may be rendered against any of them severally, where the plaintiff would be entitled to judgments against said defendants if the action had been against them alone.” The rule of practice under the common law was that in a joint action of trespass the plaintiff could not proceed to trial against some of the defendants and continue as to others. This section of the Code doubtless changed that rule of practice; and this is its whole effect, as intended by the legislature, in all probability. It certainly was not intended to cure an irregularity, though such was decided in *Waller, &c. vs.*Martin, (17 *B. Mon.,*188,) which case was very properly overruled in *Hedger vs. Downs,*(2 *Met.,*160.) If it could not cure an irregularity, where the party had not been summoned, it is hard to perceive how it can cure an irregularity where a party has been summoned. It certainly gives a plaintiff the right to go to trial against a part of the defendants, but does not cure irregularities committed on the trial.

It is not perceived how this irregularity could have been cured, even by putting the plaintiff on his election either to dismiss the suit as to the minor defendant or to give a new trial to all the defendants.

The jury, by their verdict, have found a gross sum against all the defendants, the court, by its judgment, has said it is only against two. The jury have said that $825 shall be full compensation to plaintiff against all the defendants; the court says it shall only be so, as to part of them. The jury has said *337the payment of $825 shall be a finality between the parties; the court says it shall not. The court, by its judgment, rewards the plaintiff for his neglect, error and folly, with an opportunity to recover a further sum, and makes an erroneous and defective verdict and judgment more valuable to him than if these had been perfect. Such was never intended by the law.

In a joint verdict and judgment against joint trespassers the law requires that the plaintiff shall be able to sustain them as to all, or they will be good as to none. Such is the law in my opinion.