Eddy v. Howard, 23 Iowa 175

Eddy v. Howard

23 Iowa 175 | Iowa | 1867

"Wright, J".

1. Trespass: seizure of goods: joinfc seizure of liability. The point in controversy in this ease before the jury, was whether the creditors were jointly liable. They were not personally present, respectively, controlling the service of the writs, and the seizure and sale of the property; but it is conceded that the acts of their several attorneys were theirs, and that they are to be héld accordingly. *182Each creditor had a different attorney, and upon the contested question there was much testimony, and upon it, indeed, the whole case apparently turned. It seems that the court submitted to the jury, at the instance of plaintiff, before submitting the whole case, the single question, whether the trespass was joint or several. Upon this subject the only instruction was this : “ Whether the trespass, if any, was joint or several, depends upon whether the defendants (other than Howard, the sheriff) acted in concert, prior to or at the time of the levy of the attachments, or whether each defendant, without co-operation of the others, acted separately and independent of each other in the matter. Eor example, should you find, from the testimony, that the writs, of attachment were all levied at the same time by defendant Howard, and that the attorneys of the other defendants, either prior to or at the time, directed the proceedings of the sheriff in concert, or were present together at the time of the levy, it will be sufficient to justify you in finding, and you should find, that the trespass was joint. But, on the other hand, should you find that the attachments were not all levied at the same time, that the attorneys for defendants were not acting together or in concert in ■ the matter, either' prior to or at the time of the levy of the writs, but that each of the creditor defendants was acting for himself and without the co-operation of the others, the trespass, if any, is several.”

The jury returned .for answer “Joint,” and thereupon the court proceeded to and submitted to them the whole case, and a general verdict was returned as shown by the statement, but in the subsequent instructions nothing was said on the subject of joint or several liability.

We are, then, to determine whether the instruction given embodied the law. In our opinion, it contains one fatal defect. It says to the jury, in so many words, *183that if the defendants’ attorneys “ were present together at the time of the levy,” they should find the trespass to be joint. This, without more, cannot be the law. To direct the proceedings of the sheriff in concert, or to be present together acting in concert, is one thing, and to be present together doing nothing, quite another.

The effect of the rule as stated would be, that though creditors should be each struggling as against the others, to secure their claims, yet if all should be present when the levy was made, though there was no concurrence of sentiment, no concert of action, but the most complete antagonism, there would be a joint liability. And in such case, though one should alone aid, command, advise or countenance the commission of the tort, and though the others stood by silently, their presence alone would make them equally liable. And this would be equally true if the parties acted each for himself, in producing the alleged injurious result. It, therefore, seems to us quite beyond controversy, that as this part of the instruction lost sight entirely of the idea or necessity of co-operation, encouragement, command, concert or the like, it was erroneous.

Whether the liability was joint, was a question of fact for the jury, but as the rule given was improper, a new trial must be ordered.

2. Exceptions: offtostmc? tlonsAppellee insists, however, that the exception was not properly saved, and here two questions ai’ise: First, it Se6D1S that the judge> during the argument, submitted to counsel certain instructions which would be given on this particular subject. When the argument was closed, the court refused to give such instructions, to which defendants excepted, but in their place gave that above set out, and submitted the special question of joint liability, to which defendants excepted. This exception, it is insisted, relates to the *184withdrawal of the first instructions, after what had been said, and to the asking of a special verdict, and not to any thing contained in the charge itself. This unfairly limits the force and extent of the exception. The reasonable construction is that defendants excepted to the entire action, the matter of the instruction, as well as the manner and time of giving it.

3. — general instruction.0 Second, the exception is claimed to be wanting in definiteness, being to the entire charge, and not to the objectionable part. And here counsel rely upon Davenport Gas Company v. City of Davenport, 13 Iowa, 229, and others following in 15 Id. 253, 450, 476; 16 Id. 62, and others similar. We adhere to the rule there stated, and have no disposition to depart from it. In all these cases, however, some parts of the instructions in chief were indisputably correct, and the exception was to the whole. Here there was but one proposition submitted, and it misstated the law.

Taken as a whole, no part of it is correct. The rule cited does not, therefore, apply.

i. practice : special verdiet. Other questions are made by appellants, but they relate, for the most part, to the course pursued by the court in submitting the special issue. The same thing . . will not likely arise on a second trial. We cannot, however, resist the expression of at least a doubfy whether it was a correct practice to have the jury find first whether the trespass was joint or several, and then, whether there was any. The special finding would seem to conclude every thing but the question of damages. But we will not extend the thought.

Never sed.