McCool v. Mahoney (1880) · DecisionDepot

McCool v. Mahoney

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court Jul 1, 1880 No. No. 6,407Published

Before: Department, Ross

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Holding. In an action for a joint tort, the jury cannot sever damages against individual defendants, rendering a judgment that does so erroneous and requiring a new trial.

Issues

Whether a jury may sever damages against joint defendants in an action for malicious arrest and prosecution.
Whether the court should allow a plaintiff to enter a nolle prosequi as to one defendant after the case has been argued on appeal.

Disposition. Reversed and remanded

Quotations verified verbatim against the opinion

“The action being for a wrong in which both defendants joined, the damages could not be severed.”

“The judgment as entered is clearly erroneous.”

“Motion to enter nolle prosequi as to Small denied, and judgment and order reversed, and cause remanded for a new trial.”

Synopsis

Joint Tort — Damages — Malicious Prosecution — Verdict—Judgment.— In an action for malicious arrest and prosecution, tlie verdict was: “We, the jury in the above entitled action, find for the plaintiff, against Mahoney $¡3,000, and against Small $500”; and judgment was entered accordingly. Held, that, the action being for a wrong in which both defendants joined, the damages could not be severed; and judgment reversed, and a new trial ordered.

Id.—Dismissal of Action—Release.—Query: A motion of the respondent to vacate the judgment, and to dismiss the action as to the defendant Small, denied by the Court—the Court being of the opinion, that it was not clear but that it would operate as a discharge of both defendants, and that it was fairer to both parties to deny the application.

Department No. 1, Ross, J.: Plaintiff sued defendants, jointly, for malicious arrest and prosecution. The defendants answered separately. The cause was tried with a jury, and this verdict was returned: “ We, the jury in the above-entitled action, find for plaintiff, against Ma-honey $3,000, and against Small $500.” Judgment was thereupon rendered that plaintiff recover of Mahoney $3,000, of Small $500, and of Mahoney and Small $282.75 costs of suit. The defendants made a motion for a new trial, which was denied, and appealed from the judgment and the order denying them a new trial.

After the argument of the cause here, the plaintiff asked leave to enter a nolle prosequi as to Small, and to consent that as to him the judgment be vacated and the suit dismissed. If this motion should be allowed, it is not at all clear—in view of [493]the nature of the action and the peculiar form of the judgment —but that it would operate a discharge of both defendants (Minor v. Mechanics’ Bank, 1 Peters, 87); and we think it fairer to all of the parties to deny the application, and to determine the cause as presented by the original record.

The judgment as entered is clearly erroneous. The action being for a wrong in which both defendants joined, the damages could not be severed. (Beal v. Finch, 11 N. Y. 128; Halsey v. Woodruff, 9 Pick. 555; O'Shea v. Kirker, 8 Abb. Pr. 69; Bohun v. Taylor, 6 Cow. 312; Minor v. Mechanics' Bank, 1 Peters, 74; Layman v. Hendrix, 1 Ala. 212; Hardy v. Thomas, 23 Miss. 544; Riley v. McGee, 1 A. K. Marsh. 321; Salmons v. Smith, 1 Saund. R. 207, note 2.)

As this view renders it necessary to remand the cause for a new trial, it becomes unnecessary to notice the other points made by counsel for appellants.

Motion to enter nolle prosequi as to Small denied, and judgment and order reversed, and cause remanded for a new trial.

McKinstby, J., and McKee, J., concurred.

McCool v. Mahoney

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