Lidfors v. Pflaum

BURNETT, C. J.

The plaintiff brought action against the two defendants, charging them in tort for personal injuries to himself said to have been caused by their concurrent negligence. The jury found a verdict in favor of the plaintiff and against the defendant Pflaum for $1,500, but was utterly silent as to the defendant McClain. Upon this verdict a judgment was rendered in favor of the plaintiff and against Pflaum, which in turn was also silent as to McClain. Pflaum appealed, serving his notice of appeal only upon the plaintiff and not upon McClain. The plaintiff now moves to dismiss the appeal on the ground that the notice of appeal has not been served upon all the adverse parties.

The litigants agree to the principle that this court has no jurisdiction to revise the judgment of a Circuit Court unless the notice of appeal is served upon all the adverse parties. It is likewise axiomatic that the term “adverse party” is not necessarily confined to plaintiffs as against defendants, or vice versa, but that defendants may be adverse to each other and that the same may be said of plaintiffs. It has been held in many precedents that on appeal he is an adverse party whose interest would be affected unfavorably to him by a reversal of the judgment appealed from; or, stating it differently, that, as to the appellant, he is an adverse party who is interested in sustaining the judgment or decree from which the appeal has been taken: The Victorian, 24 Or. 121 (32 Pac. 1040, 31 Am. St. Rep. 838); Moody v. Miller, 24 Or. 179 (33 Pac. 402); In re Waters of Chewaucan River, 89 Or. 659 (171 Pac. 402 175 Pac. 421). The following rules have been laid down in the Code of Civil Procedure, respecting the entry of judgment:

“Judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants; and it may, when the justice of the case requires it, determine the ultimate rights of the parties on each side as between themselves.” Section 180, Or. L.

“In an action against several defendants, the court may, in its discretion, render judgment against one or more of them, whenever a several judgment is proper, leaving the action to proceed against the others.” Section 181, Or. L.

It is well settled that a joint tort-feasor cannot complain if his codefendant escapes liability by obtaining a favorable verdict or otherwise, the reason being that no contribution towards payment of the judgment can be enforced, as a general rule, between joint tort-feasors. In other words, as between defendants sued jointly for tort, neither one is concerned about whether the other is cast in judgment or not. So here, as between the defendants, it is no concern of Pflaum that McClain escaped an adverse judgment. Neither does it affect McClain that Pflaum was defeated in the action. It may be possible that the verdict obtained was irregularly secured, owing to error in the admission of testimony or for other reasons, about which we make no intimation. But the only one who can complain of that feature as against McClain is the plaintiff, and he has not appealed.

It is said in many cases that a verdict silent as to one alleged joint tort-feasor is a finding in his favor on all the issues, and that he is entitled to judgment that the plaintiff take nothing by his action: Doremus v. Root, 23 Wash. 710 (63 Pac. 572, 54 L. R. A. 649); Jones v. Grimmet, 4 W. Va. 104; Westfield etc. Milling Co. v. Abernathy, 8 Ind. App. 73 (35 N. E. 399). In Buckles v. Lambert, 61 Ky. 330, a verdict against several joint tort-feasors was set aside as to one and it was held to be proper to render judgment against the others. In Birkel v. Chandler, 26 Wash. 241 (66 Pac. 406), there was a verdict rendered against two defendants in an action ecc delicto, which was set aside and the action dismissed as to one defendant; and it was there held not erroneous to render a judgment against the other defendant, because each was severally liable for the whole damage.

It is true that in the instant ease no judgment was rendered one way or the other against McClain. That, however, is no concern of Pflaum, and the plaintiff has not expressed his disapproval of that situation. The case was at issue as to. both defendants sued together. There was a single trial, resulting as only it could in a single judgment on that trial. The plaintiff could not have tried the case first as to one defendant and afterwards as to the other; nor could the defendants have demanded separate trials. It is true that a single judgment may affect differently several parties jointly charged; but, remembering that neither defendant is in anywise affected by the result of the judgment as to the other, it is plain that while the present judgment stands, the plaintiff cannot get another against any defendant. This one is a conclusion of the whole matter and must be respected as between McClain and the plaintiff in the absence of an attack upon it by the latter. Pflaum is entitled to attack it as against himself but not as to McClain, and it is legitimate for this court to affirm, modify or reverse it as to Pflaum without disturbing it as between the plaintiff and McClain.

The elements upon which a judgment in favor of McClain might have been rendered are present in the record and against that feature of the case no objection has been made. Ve do not intimate anything about the power or duty of the trial court to enter a judgment for McClain on the verdict, but even if that were done it would be only a part of one entire judgment, the result of a single trial. It is enough to say that so far as the record disclosed there is nothing to hold McClain. Since he is not concerned in Pflaum’s fate and Pflaum is not concerned in that of McClain, it is a matter of no moment to the latter what becomes of the judgment against Pflaum. They are not adverse to each other. The verdict has severed them and freed them from the joinder which the plaintiff formulated in his complaint. Each may hereafter pursue his own course in this litigation as if the other had not been made a party to the action. As the plaintiff has not complained of the result of the litigation as to McClain, he is in no position to say that McClain should have been served with notice of appeal.

It would have been competent for the plaintiff to institute an action against either of the defendants separately, pursuing his litigation against both of them at the same time, and to obtain judgment in each case; and neither defendant conld have complained that the other defendant should have been joined with him, because the liability for tort is both joint and several. Moreover, after having commenced an action against both of them as joint tortfeasors, the plaintiff could have dismissed the proceeding as to one and continued against the other. An equivalent result is reached by the proceeding in this case ending in a verdict silent as to one of the defendants. The deduction is that McClain cannot be affected by the affirmance or reversal of the judgment against Pflaum, and is not an adverse party within the meaning of the statute requiring the notice of appeal to be served on all the adverse parties. The motion to dismiss the appeal must be overruled. Motion to Dismiss Overruled.