Callaghan v. Myers

Citations

• 89 Ill. 566

Syllabus

<p>1. Trespass — tort feasors jointly and severally liable. For trespasses, or wrongs in the nature of trespass, the wrong-doers are jointly and severally liable, and the plaintiff is not required to sue all engaged in the tort. If he sues all, he may, at any time before judgment, dismiss as to either or any of the defendants, and proceed as to the others.</p> <p>2. Same—what equivalent to dismissal as to one defendant. Where all the defendants against whom a judgment is rendered, in trespass, by a justice of the peace, except one, appeal to the circuit court, and the plaintiff proceeds to a trial of the appeal as to those appealing, without bringing the other defendant into court by service of process, such proceedings will operate as a dismissal or discontinuance of the suit as to such defendant, and there is no error.</p> <p>3. Appeal—practice, when part of defendants appeal. Where a portion of the defendants to a suit before a justice of the peace appeal from a judgment against them all, if the plaintiff desires to recover against the defendant not uniting in the appeal, or if the cause of action is such that a recovery can only be had against all or none, the plaintiff must sue out summons against such .defendant and procure its service, if he does not enter his appearance.</p> <p>4. Instruction—construed as to assumption of fact. In an action of trespass an instruction announcing that as to a trespasser, wrong-doer or tort feasor,, possession of property is evidence of ownership, by no known rule of construction can be held as assuming the defendants to be trespassers.</p> <p>5. Same—selecting particular fad. An instruction which selects a single fact in the case, and calls the attention of the jury to it, is vicious, as giving undue prominence to such fact, and properly refused.</p> <p>6. Evidence — declarations of person in party's store. The declarations or statements of a party’s son, or other person, in charge of his store, as to a fact in dispute, is onl