Fisk v. Leith ( 1931 )

Former opinion modified on rehearing October 6, 1931 ON REHEARING (3 P.2d 535) Plaintiff earnestly urges that his claim for damages is not premature and should not be abated, as the circuit court, prior to the decree in the injunction suit, had rendered a decree affirming the order of the public service commission denying the application of Leith for a certificate of public necessity and convenience. In the opinion on original hearing it is said: "The circuit court has never made a final adjudication as to whether Leith was entitled to a certificate of public necessity and convenience."

The decree in the injunction suit was rendered on March 27, 1930. The first decree in the public service commission case is said by counsel for plaintiff to have been rendered on August 2, 1929. Without reflection upon counsel, we must say that a certified copy of the record would be more authentic. What purports to be a copy of the decree as set forth in the abstract of record bears no date. The second decree in the commission case is dated November 5, 1930, and was filed November 18, 1930, as shown by the certificate of the county clerk. There is much confusion in the record as to dates and it is not surprising that it be reflected in the opinion of the court. If, as a matter of fact, the first decree was filed on August 2, 1929, our conclusion that the suit was premature is erroneous.

The assertion of counsel for defendants that they had no knowledge of the decree, as a copy of the same was never served on them, is wholly immaterial. They had, at least, constructive notice of any decree filed. Its legal effect is unchanged by lack of service. There is no statutory rule, or rule of the circuit court to which our attention has been directed, requiring service of copy of decree on opposing counsel.

Assuming that the suit should not be abated for the reasons stated in the original opinion, the joint and several judgment against the defendants can not stand in the light of the record. The defendant Leith began operating as a public utility on or about May 23, 1927, and continued to do so until his electric plant and system were transferred and sold, in January, 1928, to the defendant Gold Beach Utilities, Inc., a corporation which he caused to be organized and of which he was president and manager. It is apparent that the corporation could not be held liable in damages for any act of Leith prior to its organization. Neither do we think that Leith is responsible personally for the acts of the corporation. Some time prior to the time this suit was commenced Leith transferred his interests to the corporation. He was not a necessary party to the suit but defendants waived any question of misjoinder by answering to the merits and submitting to the jurisdiction of the court.

Relative to the claim of damages, it is impossible to segregate the evidence so as to ascertain what damage the plaintiff sustained by reason of the act of Leith while operating as a public utility and in his individual capacity.

Equity having assumed jurisdiction, it will grant complete relief. After careful consideration, we have concluded to reverse the judgment and to remand the cause to the circuit court to take additional testimony concerning the issue of damages and to enter a decree against the defendants not inconsistent herewith.