Prescott v. O'Connell

STURTEVANT, J. In an action to recover damages for alleged personal injuries the plaintiff named as defendants Kate O’Connell, Herman Faisst and Alfred Faisst. The latter two answered. The trial court made findings in favor of the plaintiff and from the judgment entered thereon Kate O’Connell has appealed.

She contends that as to her the judgment is void. The appeal is presented on typewritten transcripts. An examination of the clerk’s transcript discloses that it purports to set forth the judgment roll in full. That roll contains copies of the complaint, amendment to complaint, answer, findings, judgment, and certificate, and no other documents or papers. After “Title of Court and Cause”, the answer commenced with the recital, “Comes now defendants Herman Faisst, by his guardian Alfred Faisst, and Alfred Faisst, two of the defendants named above ...” In no place does it contain any allegation or denial of or in behalf of Kate O’Connell. In the body of the answer appear the expressions “these defendants”, “said defendants”, “of defendants”, “the defendants”, without naming any individual. It is signed by Golding, Hale and Myers “Attorneys for defendants”. The findings use the word “defendants” without naming any individual. The judgment, however, is worded as follows:

“This cause came on regularly for trial, Geo. K. Ford, Esq., appearing as counsel for plaintiff, and Harry J. Golding and Theodore Hale, by Earl B. Myers, Esq., for the defendants. A trial by jury having been expressly waived by counsel for respective parties, the cause was tried before the court sitting without a jury. Whereupon witnesses on the part of plaintiff and defendant were duly sworn and examined; and certain documentary evidence was introduced, the evidence being closed the cause was submitted to the Court for consideration and decision, and after due deliberation thereon the Court delivers its findings and decision in writing, which is filed, and orders that judgment be entered in accordance therewith.

[222]“Wherefore, by reason of the law and the findings aforesaid,

“It is ordered, adjudged and decreed that Carolyne Prescott, plaintiff do have and recover from Herman Faisst, Alfred Faisst, Kate O’Connell, an Individual doing business under the firm name and style of Eureka Knitting Mills, Eureka Knitting Mills, defendant, the sum of Two Thousand and No/100 Dollars ($2,000.00) with interest thereon at the rate of seven per cent, per annum from the date hereof, till paid, together with said plaintiff’s costs and disbursements incurred in this action, amounting to the sum of $36.-75.”