Page:06-24-1920 -The Story of the Jones County Calf Case.pdf/39

 (23 Iowa, 165)

JOHNSON v. MILLER et al.

(Supreme Court of Iowa. Dec. 20, 1894.)

Code, § 2934, providing that where there are several defendants the cost shall be apportioned according to the several judgments rendered, does not apply, in case several persons are sued in tort and they defend jointly, and judgment is rendered in favor of plaintiff against all but one defendant, so as to prevent judgment from being rendered against the other defendants for all the costs.

Appeal from district court, Blackhawk county; D. J. Lenahan, Judge.

Boles,. Couch & Boles, for appellants.

Wheeler & Moffit and Wolf & Hanley, for appellee.

KINNE, J. 1. This case is commonly known as the "Jones County Calf. Case." It was an action for malicious prosecution, begun in Jones county, Iowa, on May 23, 1878, against E. V. Miller, David Fall, George W. Miller, Abe Miller, John Foreman, S. D. Porter, and Herman Kellar. For the purposes of this opinion we need not state the issues between the parties further than to say that the action was against all of the defendants jointly, and on every trial, except as otherwise stated, judgment was jointly rendered against all of the defendants, and the defense upon all the trials was jointly made by all of the defendants. The case was first tried in Benton county, and resulted in a disagreement of the jury. On the second trial, in the same county, the verdict was for plaintiff and against all of the defendants. This verdict having been set aside, the third trial was had in Clinton county, resulting in a verdict for plaintiff and against all of the defendants. This verdict was set aside, and a fourth trial had in the district court of Blackhawk county, wherein a verdict was rendered for plaintiff and against all of the defendants. On appeal to this court the case was reversed. 17 N. W. 34;. Thereafter the cause was tried the fifth time, and in the circuit court of Blackhawk county, and resulted in a verdict for plaintiff and against all of the defendants. On appeal to this court the judgment was reversed, and the sixth trial of the case was had in the district court or Blackhawk county. 29 N. W. 743. Upon this trial the jury were directed to find for the defendant Hermman Kellar. They returned a verdict for plaintiff and against all of the defendants except Herman Kellar for $1,000, and found for the defendant Kellar. The defendants other than Kellar filed a motion in arrest of judgment and for judgment against the plaintiff on the ground that the special findings were in conflict with the general verdict. Both motions were overruled, and judgment rendered against all of the defendants except Kellar for the full amount of the verdict. Thereafter all of the defendants except Kellar appealed to this court, and the judgment below was affirmed. 47 N. W. 903. No appeal or exception was taken by plaintiff to the instruction of the court directing a verdict for Kellar. Thereafter the widow and heirs at law of Kellar made a showing of his death, that no administrator of his estate had been appointed, and asked to be substituted in his place as parties, and that judgment be rendered in their favor against plaintiff on the general verdict dismissing the action, and for costs of said Kellar. Therafter all of the other defendants filed a motion asking the court to apportion the costs so that they should only be liable for six.-sevenths of all costs which plaintiff would have been entitled to recover had he recovered a judgment against all of the defendants in the action. Plaintiff made a showing in resistance of said motion that defendants answered jointly, with the same attorneys, and jointly assumed the burden and expense of the defense, and that plaintiff was successful in the action. Attached thereto was an affidavit of plaintiff to the effect that the only evidence applicable alone to defendant Kellar, and not necessary in the trial of the case as against the other defendants, was the testimony of one Parsons, who had been a witness upon all trials except the last, when he was subpoenaed, but for some cause unknown to plaintiff failed to attend, being absent from home; that the only costs made solely on account of Kellar were costs of service of the original notice upon him, and service of the subpoena on Parsons, and his fees and mileage-as a witness, that Kellar had no Witnesses, except himself, whose testimony was applicable alone to his defense; that Keller died six months after the last trial. The court overruled the motion, to which defendants excepted. Thereafter judgment was entered in favor of plaintiff and against the six defendants other than Kellar for the full amount of the costs in said action, being $2,586.84, to which action of the court said six defendants excepted, and now appeal.

2. The only question involved in this appeal is the ruling of the court below on the motion to apportion the costs. The appellants rely