Hamm v. Basche

Stkahan, C. J. The ruling of the court below seems to have been based upon the theory that the plaintiff, having declared upon a joint liability against all of the defendants, and having voluntarily dismissed his action as to two of them, he was precluded from proceeding to judgment against the others. In this view the court erred. Section 244, Hill’s Code, provides: “Judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants”; and section 245 provides: “In an action against several defendants, the court may, in its d iscretion, render judgment against one or more of them, 518 whenever a several judgment is proper, leaving the- action to proceed against the others.” In Sears v. McGrew, 10 Or. 48, this court considered the effect of these sections; and in disposing of them the court, by Loud, J., said: “Now, under the sections above referred to, judgment may be entered against any one or more of several defendants, whenever a several action might have been brought, or a several judgment upon the facts of the case would be proper; and this is allowable irrespective of the character of the complaint, whether it allege a joint or several liability; the true criterion being whether a separate action might have been maintained; and if it could, a several and separate judgment is proper.” This question was again before this court, in Ah Lep v. Gong Choy, 18 Or. 205. In passing upon that point, the court said: “The appellant’s counsel seemed to be of the opinion that the judgment could not be upheld as to one of the defendants, in an action upon a joint contract, unless it could be as to both. Tha\t formerly was the law. If a plaintiff commenced an action against two or more defendants upon a joint obligation, he was compelled to establish' a joint cause of action against all, except when some of the contracting parties were under a disability; but the code has changed the rule by allowing a judgment to be taken against the party or parties shown to be liable, when the others are not liable.” Now, there is nothing in the supplemental answer to show that the two defendants who were dismissed from the action were jointly liable with the others. Their answers denied their liability, which cast upon the plaintiff the burden of establishing such liability by a preponderance of the evidence. By their dismissal, the plaintiff confessed he was unable to establish such liability, and that is as much as can properly be claimed for the fact of dismissal. The case of Fisk v. Henarie, 14 Or. 29, has no application to the facts of this case. Under a statute identical or in substance the same as ours, the courts 519 of last resort in the states where the question has arisen, have decided in the same way that was held by this court. (Sears v. McGrew, and Ah Lep v. Gong Choy, supra; Silvers v. Foster, 9 Kan. 56; Lewis v. Clarkin, 18 Cal. 399; Link v. Allen, 1 Heisk. 318; Norman v. Hope, 2 Miles, 142; James v. Leport, 19 Nev. 174; Brumskill v. James, 11 N. Y. 294; People v. Cram, 8 How. Pr. 151; Claflin v. Butterly, 2 Abb. Pr. 446; Van Ness v. Corkins, 12 Wis. 186.) We are, therefore, of the opinion that the court below erred in overruling the demurrer to the supplemental answer and in dismissing the action; and that the judgment must be reversed, and the cause remanded to that court for such further proceedings as may be proper not inconsistent with this opinion.