65 P. 433 | Idaho | 1901
Lead Opinion
This is an action to recover damages for-alleged wrongful acts of defendants in diverting certain water to their own use which belonged to the plaintiff. The complaint states two causes of action. Under the first it is alleged that the damage sustained by the plaintiff amounted to $1,~ 038.50, and under the second the damage is placed at $1,089. It is alleged that the defendants (who are appellants) acted jointly in the wrongful diversion of -said water. The appel
Respondent moves this court for an order dismissing said appeal on four grounds, to wit: 1. That no undertaking in due-form of law was filed within five days after the service of the-notice of appeal, and that the sureties did not sign the undertaking; 2. The record nowhere shows the date of filing said undertaking; 3. That the transcript does not contain all of the-papers constituting the judgment-roll; 4. The record fails to-show that this court has jurisdiction.
On an inspection of the court calendar it is made to appear that on the sixteenth day of May, 1901, the court set this case for argument on the twenty-fourth day of that month, and that said case was argued on that day. Under rule 17 of the rules of this court (32 Pac. ix), objections to the transcript must be noted in writing and filed at least one day before argument or
Appellants contend that the complaint does not state a cause of action. We think it does. The complaint is based on the theory of a combination of the defendants to commit an unlawful act.
The jury by their verdict found for the plaintiff on that issue, and rendered a several verdict against each of the defendants. The judgment entered is joint and several, and is founded on a several verdict, and for that reason is erroneous, as under the verdict a several judgment only could be entered.
As the verdict against each of the defendants was for less than $100, it was error for the court to allow costs to the plaintiff. The provisions of subdivision 3, section 4901, and of section 4904 of the Bevised Statutes, prohibit the allowance of costs in eases where the plaintiff fails to recover $100. This was not an action in which defendants could properly be joined. Hence the several judgments against each cannot be aggregated for the purpose of obtaining costs.
The cause is remanded, with instructions to the trial court to modify the judgment as follows: To enter a several judgment against each of the defendants for the sum found against him by the verdict, without awarding costs to plaintiff. Costs of this appeal are awarded to the appellants.
Rehearing
ON REHEARING.
In a petition for rehearing the respondent Insists that the decision herein should be modified as against the three Kaufmans, so as to allow to the respondent costs against said three defendants below in the lower court; but, inasmuch as the jury found each of said defendants to be a several trespasser, and found a separate amount in damages against each of them, we do not feel authorized to hold that the three defendants named are joint trespassers, because of