Brooks v. Collier , 3 Indian Terr. 468 ( 1900 )

Thomas, J.

While no specific assigment of errors has been made in this case, the appellant’s contention is made clear by his brief filed herein.

Misjoinder oí Parties. The first error complained of is that there could not be a joinder of two or more plaintiffs in an action for slander, like this; that in fact there was no joinder of plaintiffs by consent of the court. The record shows that in reply to appellant’s motion for a rule on appellee W. M. Collier to swear to the complaint, and appellant’s demurrer to appellee W. M. Collier’s complaint, appellee J. N. Collier filed a motion for leave to become joint plaintiff with his brother, W. M. Collier, alleging that the facts complained of by W. M. Collier and set forth in his complaint were also made against him. This motion was not acted upon by the court. If the petition or motion of J. N. Collier was not acted on by the court, and leave given by the court for him to become a party plaintiff to the suit, then he was not in fact or in law a party plaintiff to the suit, and his rights or wrongs could not be inquired into either by the court or the jury. If the court regard the petition or motion as granted, and the two brothers as joint plaintiffs, then the demurrer to the complaint should have been sustained. There can be, from the very nature of things, no joint damage to the character of individuals. A corporation may be slandered, or possibly the good name of a partnership, where the slander is directed against the corporation or partnership as such. But a corporation manifestly could not sue for a wrong done to a stockholder or director, nor could a partnership sue and recover for damage done to an individual member thereof. And we submit that, even in a proper case for a corporation or a partnership to bring such a suit, the damages could not be divided per capita among the stockholders or the members of the partnership without doing violence to the cardinal principle that profits are to be divided as the interests of the parties appear. How could a court or jury determine the amount of damages sustained by each and both of the plaintiffs jointly? We know that the temperament and character of persons capable of being injured are as diverse as the color and value of diamonds; that a slander which would crush a weak, highly sensitive man would fall harmless at the feet of a strong, self-reliant one. The overruling of the demurrer to the complaint was manifest error.

Amendment of Verdict by Court. Default Judgment on Amended Complaint. The court below, after overruling appellant’s demurrer to appellees’ complaint, without disposing of the motion to require appellees to make their complaint more definite and certain, and without allowing appellant an opportunity to reply, impaneled a jury and proceeded with the trial. The jury returned a verdict for appellees for $500 damages, whereupon the appellant filed his motion for a new trial and a motion in arrest of judgment. With these motions undisposed of, the court, on the motion of the plaintiff, struck from the complaint the name of the original plaintiff, W. M. Collier, and remitted $250 of the damages returned by the jury in their verdict, to which action of the court the appellant excepted. The court then overruled the motion for a new trial and the motion in arrest of judgment, and entered judgment for appellee J. N. Collier for $250 and costs, to which the appellant excepted. A judge cannot, under the disguise of amending a verdict, invade the exclusive province of the jury, and thereby substitute his estimate of the damages and verdict for theirs. Thomp. Trials, § 2642. After a new plaintiff is added by amendment, the original plaintiff cannot be stricken out by subsequent amendment. 17 Am. & Eng. Enc. Law, 619; Berry vs Ferguson, 58 Ala. 314; Leaird vs Moore, 27 Ala. 326. Where the verdict is joint, the judgment must be joint; where several, the judgment must be several. Allen vs State, 34 Tex. 230; Stewart vs Pruett, 6 La. Ann. 727; 11 Enc. Pl. & Prac. 907. In this case the verdict was joint, while the judgment was for a single plaintiff; and that, too, for the plantiff brought in by the supposed amendment. A judgment by default must be upon the original complaint, and not controlled by amendments, made after summons. The power vested in the courts to amend proceedings so as to meet the ends of justice contemplates trials in the presence of the parties, but does not extent the judgment by default against absent defendants. State vs Railroad Co., 16 Fla. 708; 11 Enc. Pl & Prac. 874.

Each of the errors assigned are to be found in the record. For this reason, and upon the authorities cited, we are of opinion that the judgment of the court below should be reversed and remanded, with direction that the cause be dismissed. Reversed and dismissed.

Clayton, C. J. and Townsend and Gill, JJ., concur.