Butler v. Ashworth

Van Fleet, J. Plaintiff brought an action against the city and county of San Francisco alone, to recover damages to her property caused by a broken sewer. The complaint was in two counts, the first upon the breaking of the sewer and the neglect to repair the same, and the second upon the negligent and improper manner in which the break was repaired—the proximate and efficient cause of damage assigned in each count being the inundation of plaintiff’s premises by the overflow from the broken and choked-up sewer; and the damages alleged in each count being identical as to time, manner, and extent.

In that action plaintiff recovered a judgment for eleven hundred and ninety dollars and her costs of suit.

Within two years after the bringing of that action, and before the satisfaction of the judgment therein, plaintiff brought the present action against the defendant Ashworth, as superintendent of streets of said city, and the other defendants as his deputies, wherein, in a single count exactly similar in all substantial respects to the second count in the first-named action, she sought damages accruing to her property through the breaking of said sewer, the immediate cause of damage assigned being the same overflow as that alleged in the previous action, and the damages alleged being as to time, manner of infliction, and in amount the same. In this action plaintiff also recovered a judgment for the sum of eight hundred dollars damages, and three hundred and ninety-four dollars costs of action.

Subsequent to the recovery of this last judgment, on [618]the first day of August, 1893, the judgment in the said action against the city and county was fully paid, satisfied, and discharged. Thereafter, the defendants in the present action moved the court below for an order restraining and enjoining the plaintiff therein from issuing or levying execution under the judgment therein, and that said judgment be ordered satisfied of record, upon the ground that plaintiff by the payment and satisfaction of the judgment in her said action against the city and county of San Francisco had been fully compensated for the identical injuries herein counted upon, and was entitled to no further relief in the premises; that both of said actions were brought for the same cause of action, and against several parties who might have been joined as defendants in one action, and who were all openly within the state at the time of the commencement- of the first-named action. At the hearing of this motion the facts substantially as above recited were made to appear, and the court made an order granting the motion as to the eight hundred dollars damages recovered, but denied it as to the sum of three hundred and ninety-four dollars costs. Both parties excepted to the order of the court, and they both appeal—the plaintiff from so much of the order as deprives her of the eight hundred dollars damages, and the defendants from that part denying their right to satisfaction of the judgment as to the costs.