Nichols v. Dunphy

Jul 1, 1881
No. 6,932
Reporters:
,
Before:
Ross
Ross, J.;

The plaintiff sued to recover damages alleged to have been caused to her by the negligent act of defendants. Verdict and judgment was rendered in favor of the plaintiff and *607against the defendants for the sum of five thousand dollars and ‍‌​‌‌‌‌‌‌​‌‌​​‌‌‌‌​​‌​‌‌​‌​‌‌‌​‌‌​‌​​​‌‌‌‌​​‌‌‌​​‌‌​‌​‌​‌‌​​‌‌‌​‌‌​​‌‌‌​‌‌‌​‌‌‌‌​‌​​​​‌​‌‌​‌‌‌​​​‍costs. From the judgment the defendant, William Dunphy, appealed to this Court. Defendant Carmen did not appeal. On the hearing of the appeal of William Dunphy, the judgment was “reversed and cause remanded” on the ground that the complaint counted against both defendants as actual tortfeasors, personally participating in the wrong complained of, and it did not appear that the appellant, William, was personally present at or in any wise personally participated in the collision which occasioned the damage. On the going down of ‍‌​‌‌‌‌‌‌​‌‌​​‌‌‌‌​​‌​‌‌​‌​‌‌‌​‌‌​‌​​​‌‌‌‌​​‌‌‌​​‌‌​‌​‌​‌‌​​‌‌‌​‌‌​​‌‌‌​‌‌‌​‌‌‌‌​‌​​​​‌​‌‌​‌‌‌​​​‍the remittitur the plaintiff caused execution to be issued on the judgment against Carmen, which execution was subsequently, on motion, quashed by order of the Superior Court; and from this order the present appeal is taken.

What, if any, relation exists between the Dunphys nowhere appears.

We think the Court erred in quashing the execntion against Carmen. The judgment against her was unaffected by the appeal of her co-defendant, and the subsequent proceedings thereon. Carmen could also have appealed from the judgment if ‍‌​‌‌‌‌‌‌​‌‌​​‌‌‌‌​​‌​‌‌​‌​‌‌‌​‌‌​‌​​​‌‌‌‌​​‌‌‌​​‌‌​‌​‌​‌‌​​‌‌‌​‌‌​​‌‌‌​‌‌‌​‌‌‌‌​‌​​​​‌​‌‌​‌‌‌​​​‍she had desired to do so. Had she done so, and the facts had established that the damage was caused by her negligence, and that her co-defendant did not in any wise participate in the wrong, this Court undoubtedly could, and would, have affirmed the judgment as to her, and reversed it as to William Dunphy. (Code Civ. Proc. §§ 414, 578; Wood v. Orford, 56 Cal. 157; McIntosh v. Ensign, 28 N. Y. 169; Freeman on Judgments, 3d ed. § 236, and authorities there cited.) The case, as it stands, ‍‌​‌‌‌‌‌‌​‌‌​​‌‌‌‌​​‌​‌‌​‌​‌‌‌​‌‌​‌​​​‌‌‌‌​​‌‌‌​​‌‌​‌​‌​‌‌​​‌‌‌​‌‌​​‌‌‌​‌‌‌​‌‌‌‌​‌​​​​‌​‌‌​‌‌‌​​​‍leaves Carmen in no better position. She was content to rest with the judgment against her. As to her, there was- a valid judgment, in plaintiff’s favor, unappealed from and undisturbed. The case of McCool v. Mahoney, 54 Cal. 491, is unlike this. There the plaintiffs sued the defendants, Mahoney and Small, jointly, for malicious arrest and prosecution. The jury returned a verdict for plaintiff against Mahoney, for three thousand dollars, and against Small for five hundred dollars; on which verdict the Court entered judgment against ‍‌​‌‌‌‌‌‌​‌‌​​‌‌‌‌​​‌​‌‌​‌​‌‌‌​‌‌​‌​​​‌‌‌‌​​‌‌‌​​‌‌​‌​‌​‌‌​​‌‌‌​‌‌​​‌‌‌​‌‌‌​‌‌‌‌​‌​​​​‌​‌‌​‌‌‌​​​‍Mahoney for three thousand dollars, against Small for five hundred dol*608lars, and against Mahoney and Small for two hundred and eighty-two dollars and seventy-five cents, costs of suit. We held the judgment as entered erroneous.

Order reversed.

McKinstry, J., and McKee, J., concurred.