5 W. Va. 131 | W. Va. | 1872
Griffie brought an action of trespass against several persons, of whom the defendant, Thomas McClung, was one; and on the 8th day of December, 1866, obtained a judgment against six of the parties, including the defendant, McClung. Afterwards, on the 4th day of April, 1867, said McClung made a motion to set aside the judgment as to him, because at the time it was rendered he was an infant under twenty-one years of age, and afterwards, on the 19th day of October, 1867, the said judgment was set aside as to him. And afterwards the cause came on to be tried against the said McClung, when he filed three pleas in bar, which were demurred to, and the demurrer overruled and the pleas sustained and judgment rendered for the defendant, and from this judgment the appeal in this cause is taken. The pleas
The appellant insists that the judgment of the court is erroneous, because the pleas do not aver that the judgment for the same cause of action had been released or satisfied. There is some difference between the English courts and some of the courts of this country as to what will amount to a release of joint trespassers, but the authorities have all been lately reviewed by the supreme court in the ease of Lovejoy vs. Murray, 3 Wallace, p. 1, and held by that court that a judgment against one joint trespasser is no bar to a suit against another for the same trespass, and that nothing short of full satisfaction, or that which the law must consider as such, can make such judgment a bar. The same principle-was in substance held by this court in the case of Bloss vs. Plymale, 3 W. Va., 393.
We do not think it necessary to re-examine the authorities in this case, but upon the authority of Lovejoy vs. Murray, think the court below erred in overruling the demurrer and sustaining the defendant’s pleas.
The defendant has given notice that the appellee will rely upon the fact that an error was committed by the circuit court in not setting aside the whole judgment as to all the defendants, when it set it aside as to the defendant McClung. The only parties to this appeal are the plaintiff, Griffie, and the defendant, Thomas McClung, and it could not be to the prejudice of McClung that at the time the judgment was set aside as to him, it was not set aside as to the other defendants, and he cannot complain of it. No opinion is therefore expressed as to whether the court did or did not commit any error in that respect.
For the error of the court in overruling the demurrer and. sustaining the pleas, the judgment complained of will have to be reversed at the cost of the appellee, and the cause remanded.
Judgment reversed.
