Young v. Woodward Iron Co. ( 1927 )

Counsel for appellant suggest that we are in error in granting plaintiff's motion for new trial as against the defendant Giles, and at the same time affirming its denial as to other defendants.

At common law a judgment against two or more defendants jointly was regarded as an entirety, so that a reversal of the judgment as to one defendant required a reversal as to all. This rule, founded chiefly upon technical considerations, and now generally disfavored by the courts, has been recognized as existing in this state. Huckabee v. Nelson, 54 Ala. 12; Massey v. Oates, 143 Ala. 248, 39 So. 143; Lawrence v. Stone, 160 Ala. 382,49 So. 376, 135 Am. St. Rep. 105; Sprague et ux. v. Daniels, 31 Ala. 444.

In later cases, while the general rule is not denied, exceptions have been recognized, and the force of the old rule is now materially weakened. North Alabama Traction Co. et al. v. Hays, 184 Ala. 592, 64 So. 39; Southern R. Co. et al. v. Harris, 207 Ala. 534, 93 So. 470.

As noted in the text of 2 Ruling Case Law, 268, § 220:

"The tendency of modern decisions is, however, to modify the strictness of the common-law rule to the extent of holding that a judgment, though joint in form, is not necessarily entire, and that, where it is several in effect, and the adjudication as to one cannot affect the rights of the others, such judgment may be reversed as to some and affirmed as to others."

See Sparrow v. Bromage, 83 Conn. 27, 74 A. 1070, 27 L.R.A. (N.S.) 209, 19 Ann. Cas. 796, and note, 798.

In the instant case the common-law rule as to the entirety of a joint judgment against two or more defendants is without any application, either technical or logical; and, not being committed thereto by any previous decision, we decline to extend the rule to judgments in favor of joint defendants, where the reason and justice of the case do not demand it. The only case in the books to the contrary is the old case of McDonald v. Wilkee, 13 Ill. 22, 54 Am. Dec. 423, where the court evidently confused judgments for with judgments against joint defendants, and illogically and heedlessly applied the same rule.

But there is another difference here which must be noted. The question is not upon reversing the judgment proper, but upon the granting of a new trial as against one defendant because of newly discovered evidence admissible against him alone. In such cases it seems that the ancient common law has been denied by practically all of the courts, and joint verdicts in tort may be set aside as to one or more of the defendants, if justice so requires, and allowed to stand as to others. 20 R. C. L. 224, § 9; Sparrow v. Bromage, 83 Conn. 27, 74 A. 107, 27 L.R.A. (N.S.) 209, and note, 19 Ann. Cas. 796, and note, 797. To this view of the law this court gave full assent in the case of Pounds v. Richards, 21 Ala. 424, 426, where it was said, per Chilton, J.:

"We do not assent to the proposition asserted by the counsel for the plaintiff in error, that the court could not grant a new trial as to one party who was jointly sued, and refuse it as to another. In actions of tort, it is competent for the jury to find one of the parties guilty, and another not guilty. It may turn out also, that there may be no evidence conducing to show the guilt of one of the codefendants, while, as to the others, there may be a strong case made out. In all such cases, should the jury find a verdict of not guilty as to all, and the court should think a new trial ought to be granted, it would be doing great injustice to the innocent party, as against whom there was no evidence, to order a new trial as to him."

In a case like this, if it were conceded that a judgmentin favor of two defendants is an entirety, the manifest result would be to deny a motion for new trial because of newly discovered evidence, unless the evidence would be admissible and effective against both defendants.

For the reasons stated, the application for rehearing will be overruled.

All the Justices concur.