Donnelly v. Gray Brothers

HALL, J.

This is an action brought against Gray Brothers, a copartnership alleged to consist of five members, who are charged by fictitious names, three corporations, and two other defendants charged by fictitious names, for damages to a lot belonging to plaintiff, resulting from certain blasting and

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grading operations alleged to have been carried on by defendants. The complaint is unverified, and the answer is a general denial. It begins: “Now come the defendants herein,” and is signed “Fisher Ames, Attorney for Defendants,” and in no other way is the identity or names of the various defendants indicated by any pleading or motion filed or made by “the defendants” prior to the entry of judgment. The case was tried before a jury, and a verdict rendered against “the defendants” and in favor of plaintiff. The evidence disclosed that the partnership consisted of Harry N. Gray and George F. Gray only, and that the blasting and grading operations complained of were carried on by such firm only, and there was no evidence tending to connect either of the defendant corporations or any of the other defendants with the matters complained of by plaintiff. The complaint was not amended by inserting the ttrue names of the members of the firm, nor was the action dismissed as to any of the defendants, nor was any motion made on behalf of any of the defendants for a nonsuit, but the entire case was submitted to the jury by the court without the attention of the jury being in any way directed to the fact that a verdict might be rendered against some of the defendants and in favor of the others. Nor was the attention of the court called to this condition of affairs by either counsel until after .the verdict. “The defendants, and each of them,” moved for a new trial, which the court granted upon terms that the defendants pay the costs of the trial in the sum of $104. From this order defendants have appealed.

The notice of appeal is in form from the entire order thus: “From the order granting defendants’ motion for a new trial ‘upon the payment by defendants to plaintiff herein of the sum of $104 within twenty days from the date of the entry of this order, ’ which said order’ was made and entered in the minutes of said superior court on the fourth day of April, A. D. 1905”—and it is only by inference resulting from the inclosing of that part of the order requiring the payment of the $104 in quotation marks, that we can determine that appellants only intended to appeal from that particular portion of the order. At the oral argument, however, counsel stated that he only asked for the reversal of that portion of the order, and by no means wished a reversal of the