Richards v. Scott , 7 Idaho 726 ( 1901 )

SULLIVAN, J.

This is an action to recover damages for-alleged wrongful acts of defendants in diverting certain water to their own use which belonged to the plaintiff. The complaint states two causes of action. Under the first it is alleged that the damage sustained by the plaintiff amounted to $1,~ 038.50, and under the second the damage is placed at $1,089. It is alleged that the defendants (who are appellants) acted jointly in the wrongful diversion of -said water. The appellants answered jointly, and put in issue all of the allegations of the complaint, and denied that they acted jointly or otherwise. The cause was tried by the court 'with a jury. The-jury returned the following verdict: “We, the jury in the above-entitled action, find for plaintiff, and assess his damages-as follows: Against W. A. Scott, $25; against George Ballard,. $25; against M. Kaufman, $80; against Henry Kaufman, $80;. against Edward Kaufman, $80; against Samuel Goddard, $10.. Good Easmussen. S. C. Drollinger. Jesse Clark. Eichard Later. George Webster. Floyd G. Longley. William HilL J. E. Galbraith. S. G. Chandler. S. W. Orme. S. E. McBee. M. M. Hammond. Filed March 8th, 1900.” Thereupon respondent filed his cost bill, claiming the sum of $455.10, and the court rendered judgment on said verdict as follows “Wherefore, by virtue of the law and by reason of the premises, aforesaid, it is ordered, adjudged, and decreed that said John E. Eichards have and recover from said defendants and each of them the amounts as set forth in the verdict to each, in all $300, with interest thereon at the rate of seven per cent per annum from the date thereof until paid, together with said plaintiff’s costs and disbursements incurred in this action,, amounting to the sum of $455.10 said cost to be equally apportioned between the several defendants hereto.” This appeal is from the judgment.

Respondent moves this court for an order dismissing said appeal on four grounds, to wit: 1. That no undertaking in due-form of law was filed within five days after the service of the-notice of appeal, and that the sureties did not sign the undertaking; 2. The record nowhere shows the date of filing said undertaking; 3. That the transcript does not contain all of the-papers constituting the judgment-roll; 4. The record fails to-show that this court has jurisdiction.

On an inspection of the court calendar it is made to appear that on the sixteenth day of May, 1901, the court set this case for argument on the twenty-fourth day of that month, and that said case was argued on that day. Under rule 17 of the rules of this court (32 Pac. ix), objections to the transcript must be noted in writing and filed at least one day before argument or they will not be regarded. Said motion, having been filed on the day said case was argued, was not filed, and under said rule it must be disregarded.

(June, 26, 1901.)

Appellants contend that the complaint does not state a cause of action. We think it does. The complaint is based on the theory of a combination of the defendants to commit an unlawful act.

The jury by their verdict found for the plaintiff on that issue, and rendered a several verdict against each of the defendants. The judgment entered is joint and several, and is founded on a several verdict, and for that reason is erroneous, as under the verdict a several judgment only could be entered.

As the verdict against each of the defendants was for less than $100, it was error for the court to allow costs to the plaintiff. The provisions of subdivision 3, section 4901, and of section 4904 of the Bevised Statutes, prohibit the allowance of costs in eases where the plaintiff fails to recover $100. This was not an action in which defendants could properly be joined. Hence the several judgments against each cannot be aggregated for the purpose of obtaining costs.

The cause is remanded, with instructions to the trial court to modify the judgment as follows: To enter a several judgment against each of the defendants for the sum found against him by the verdict, without awarding costs to plaintiff. Costs of this appeal are awarded to the appellants.

Quarles, C. J., and Stockslager, J., concur.