Streeter v. Marshall Silver Mining Co.

Elbert, J. There was no appearance in the court below by the defendant Paul. - Where counsel, in the first of a series of pleas filed, expressly designate 'the defendants for whom they appear, the use of the words “the said defendants” or “the defendants ” in the subsequent pleas designate the defendants named in the first plea and cannot fairly be held to be an appearance for a defendant served but not named in the [540] first plea. Gargan et al. v. School District No. 15 (ante, p. 53), and cases there cited. There being no appearance by the defendant Paul, it was error to enter final judgment against all the defendants, without first entering judgment of default against him. Good v. Martin, 1 Col. 406. An entire judgment against several defendants must be reversed as to all. It cannot be reversed as to one and affirmed as to the others. Gargan et al. v. School District No. 15, supra. In view of another trial it is perhaps well to notice some of the questions raised by the instructions and argued by counsel. The defendant asked and the court refused to give the following instruction: “That the money alleged to have been paid for the expenses of men to watch or hold the mine against other than the defendants in this case cannot be allowed in this case, and it is not a legitimate item of the damages covered by the bond sued on. ” The refusal to give this was error, and in contravention of the fundamental rule that no damages will be allowed which are not the actual, natural and proximate result of the wrong committed. Another instruction asked and refused is as follows: “That if they believe, from the evidence, that the Marshall Silver Mining Company, one of the plaintiffs, was the owner of Compass and Square lode ; and that at time of service of writ of injunction referred to in bond upon which suit was brought, it had leased the same to Robinson, Wycoff & Sargent, and by the terms of such lease were to have one-third the proceeds of the ore taken out of the property so leased, then defendants in this case are not liable to the company or to any or all of these plaintiffs for the amount of such, one-third, even, although the said lessees were prohibited by the injunction from working said property, unless it has been shown that said company, in consequence of the issuance of said writ of injunction, lost said one-third or some portion of it, or was unable to lease said property on the same terms, and that-if the ore remained in the mine, in the absence of proof that the company could not lease the said [541] mine, and procure the ore to be taken out on the same terms as in the former lease, the said company cannot be held to have suffered any damage, by reason of the failure of lessees to take out such ore, and the jury should allow no damages to the said company on account of said injunction.” This instruction is not free from objection. The premises do not warrant the broad conclusion that “ the jury should allow no damages to the company on account of the injunction ; ” nor is the right to recover the value of the one-third of the proceeds at all dependent on the ability or inability of the company to lease its mine on the same terms. But in so far as it excludes the value of the one-third of the product of the mine going to the company under the-terms of the lease, from the damages recoverable by the plaintiffs, it is correct. The company did not, by reason of the injunction, lose its ores, but their production for forty-five days under the terms of the lease. There was no loss of property; there may have been a loss of profits. If, for instance, the company was compelled to pay higher rates than under the terms of the lease for mining the same ores, there .was a loss of profits in this respect to the extent of the increased cost, which was the legitimate subject of recovery. So, too, a loss of profits ■arising from loss of the use of the product or its value would afford ground of compensation.” . Another instruction refused by the court is as follows: “ That plaintiffs in this case cannot recover of defendants herein any damages on account of any loss of profits alleged to have accrued to • Robinson, Sargent & Wycoff, or either of them, growing' out of the said lease testified to by Robinson, unless said plaintiffs have shown by the evidence that said parties were, by the delay and stoppage of the work under said lease, occasioned by the issuance of the writ of injunction, actually deprived of such profits, and that they were unable to procure a new lease upon the same terms as the first one, upon which to work the ground so leased by them.” [542] This instruction was properly refused. Bobinson, Sargent & WycofF were lessees, and were entitled to recover the value of the lost period of their lease. without reference to their ability to make a new lease, on the same terms. It is not intended here to lay down a rule covering all the damages recoverable on the bond, but simply the rule upon the points indicated. The right of the obligees in this bond to maintain a joint action thereon is not called in question, and we are not to be regarded as deciding the question by implication. The judgment of the court below is reversed a,nd the cause remanded for further proceedings according to law. Reversed.