Engleken v. Webber

Rothrock, J. i. practice in court'^appeta: eo-deíeudant. I. A question is made as to the right of the defendant Weston to appeal from the judgment against the defendant Webber. The record shows that appelserve(l notice of appeal not only on the plain-put upon his co-defendant, Webber. Under such circumstances, Webber having failed to appear in this court and make known his refusal to join in the appeal, he is deemed to have joined, and is liable to his due proportion of costs. Code, §3176. It follows that the judgment against Webber has been appealed from, and Weston can maintain any proper objections there may be thereto. Aside from this, as the plaintiff in the court below asserted a claim against the property of Weston, and still asserts it, we know of no rule that would prevent Weston, not only from defending against the lien sought to be fastened upon his property, but also from defending against the alleged claim of plaintiff for damages. He has the same right to thus defend that a surety would have to show that the debt had been paid by his principal, or that [560] the same was without consideration, and at the same time make any proper defense in his own behalf. 2. intoxicareco*eryUofS: w«efScvi-y dence. II. The defendant on the trial introduced in evidence wi thout objection the record of the case of plaintiff against John Weiss, showing a confession of judgment for $400, ^ay 12, 1875, which it appears was paid, and offered to introduce the record in the case of plaintiff against Michael Hilger, showing the recovery of a judgment for $425, and also the record in the case of plaintiff against Mathias Schultz, showing the recovery of a judgment for $400. The petitions in these two last mentioned cases were filed on the same day as the petition in the case at bar. All of these petitions, including that of the case now under consideration, contain substantially the same allegations as to the character of the injuries suffered by plaintiff, and they for the most part cover the same period of time in which it is alleged that sales of intoxicating liquors were made to her husband. The substance of these petitions is that the plaintiff was dependant on the labor of her husband for support, and that when sober he was an industrious mechanic, and a kind and affectionate husband, and that by continuous sales of intoxicating liquors by defendants to him he became and was intoxicated, so that he neglected his business and family, and spent all his earnings for liquor, and was violent, abusive, unkind, etc. Objection was made by the plaintiff to the introduction in evidence of the record of the cases against Ililger and Schultz and sustained by the court, to which defendant excepted. In the case of La France v. Krayer, 42 Iowa, 143, and in Jewett v. Wanshura, 43 Iowa, 574, it was held by this court that where the petition by the wife against several defendants alleged continuous sales running through a considerable time, and the alleged damages were not the result of a particular and single intoxication contributed to by all of the defendants, a joint action would not lie. In the last mentioned case it was further held that each party under such circumstances should only be held for the damages which his own acts occasioned, and that several recoveries may be had against the parties thus severally liable. Following this interpretation of the statute [561] it was error for tlie court below to refuse to allow the records in the cases named to go in evidence to the jury. They would have tended to show that tlie plaintiff had already recovered judgments against the parties therein named for part of tlie injury and damages which she claimed in this action, and were proper evidence to establish that fact. It is urged by counsel for appellee that no stated objection was made to the introduction of the record of said cases in evidence; but that the objection was general and for this reason the error complained of cannot avail the appellant in this court. The appellant offered the records in evidence, as is shown by the abstract, for the purpose of showing that the plaintiff claimed damages for the same acts and injuries that she claims for in this case. If objections existed to the introduction of the records, it was the duty of plaintiff to make them specific. “ Where the prevailing or successful party, the appellee, makes a general objection which is sustained by the court, then if appellant can show in this court that there could be no legal or possible ground upon which the ruling of the court below can be sustained, the appellant will be entitled to a reversal of tlie judgment, since there must be an error of law in sustaining the objection.” Clark v. Connor, 28 Iowa, 311. 3 _._. lien. III. The order of the court establishing the judgment as a lien upon defendant Weston’s property was made on the same evidence on which the jury found the verdict, and without any additional evidence, and it is urged by counsel for appellant that the court erred in rendering judgment establishing the lien against a portion of the property without determining what portion. As the judgment must be reversed and cause remanded for a new trial, it is unnecessary to determine the question whether the order or judgment establishing the lien was erroneous or otherwise, and yet we may say in view of a new trial that as the Code, section 1558, provides that the real property occupied and used by the defendant shall be liable and subject to the lien of the judgment, except the homestead, it was the duty of the court, not to ascertain the homestead, but to ascertain and fix specifically the property upon which the lien should attach, if this could be [562] done. We confess our inability to do so on tbe evidence before ns. It appears from the evidence that Weston was, with his family, living in the building and occupying it as a home; that Webber occupied a room in the basement as a saloon. Another room above was used by Weston as a store. We are left to conjecture as to whether this building was so constructed as to render it reasonably certain that parts of it were intended for stores, or for rooms in a dwelling house. It appears that Webber at the time of the trial in the court below was not keeping saloon in the building. Whether the room he occupied was let to him for a mere temporary purpose, under such circumstances as not to destroy its homestead character, or whether it was so situated as to the homestead as to be capable of being designated as separate property, we cannot determine from the evidence. These and other considerations will arise on a re-trial, and it is unnecessary to pursue the inquiry further here. Reversed.