McCOOL v. MAHONEY et al., 54 Cal. 491

Department No. 1, Ross, J.: Plaintiff sued defendants, jointly, for malicious arrest and prosecution. The defendants answered separately. The cause was tried with a jury, and this verdict was returned: “ We, the jury in the above-entitled action, find for plaintiff, against Ma-honey $3,000, and against Small $500.” Judgment was thereupon rendered that plaintiff recover of Mahoney $3,000, of Small $500, and of Mahoney and Small $282.75 costs of suit. The defendants made a motion for a new trial, which was denied, and appealed from the judgment and the order denying them a new trial.

After the argument of the cause here, the plaintiff asked leave to enter a nolle prosequi as to Small, and to consent that as to him the judgment be vacated and the suit dismissed. If this motion should be allowed, it is not at all clear—in view of the nature of the action and the peculiar form of the judgment —but that it would operate a discharge of both defendants (Minor v. Mechanics’ Bank, 1 Peters, 87); and we think it fairer to all of the parties to deny the application, and to determine the cause as presented by the original record. The judgment as entered is clearly erroneous.

The action being for a wrong in which both defendants joined, the damages could not be severed. (Beal v. Finch, 11 N. Y. 128; Halsey v. Woodruff, 9 Pick. 555; O'Shea v. Kirker, 8 Abb. Pr. 69; Bohun v. Taylor, 6 Cow. 312; Minor v. Mechanics' Bank, 1 Peters, 74; Layman v. Hendrix, 1 Ala. 212; Hardy v. Thomas, 23 Miss. 544; Riley v. McGee, 1 A. K. Marsh. 321; Salmons v. Smith, 1 Saund. R. 207, note 2.) As this view renders it necessary to remand the cause for a new trial, it becomes unnecessary to notice the other points made by counsel for appellants.

Motion to enter nolle prosequi as to Small denied, and judgment and order reversed, and cause remanded for a new trial. McKinstby, J., and McKee, J., concurred.