Opinion
No. 45293.
November 19, 1940.
TORTS: Motion to separate joint tort-feasors refused — satisfaction by one tort-feasor — appeal question moot. In an action against joint defendants for damages for assault and battery, where one defendant moves to divide the cause of action and strike the names of two of the defendants from the petition, and when, pending his appeal from the action of the court in overruling the motion, judgment against the other defendant, a deputy sheriff, is entered and satisfied, the questions raised in the appeal become moot and the appeal should be dismissed, since a satisfaction of the cause of action against one joint tort-feasor is a satisfaction against all.
Appeal from Webster District Court. — T.G. GARFIELD, Judge.
Action for damages alleged to have been sustained by an assault and battery inflicted by defendant LaPoint. Defendant Treloar was asserted to have aided and abetted said assault and battery; he moved to separate and divide the causes of action and, such motion being overruled, appeals. Pending the appeal, the cause proceeded to trial against defendant LaPoint. Judgment was recovered and the same has been satisfied. Plaintiff now moves to dismiss the appeal on the ground that the issues presented thereby have become moot. — Appeal dismissed.
Mitchell Loth, for appellant.
D.M. Kelleher and H.J. Melton, for plaintiff-appellee.
Comfort Comfort and Helsell, Burnquist Bradshaw, for defendant-appellees.
This case comes to us on the pleadings. The plaintiff's petition asserts that defendant LaPoint is a deputy sheriff and the defendant Massachusetts Bonding Insurance Company is the surety on his official bond as well as the surety on the official bond of the sheriff. The defendant Treloar is the proprietor of Treloar's Inn. Plaintiff sought damages for an alleged wrongful assault and battery, asserted to have been committed by LaPoint. Treloar was joined as a defendant, it being asserted that he conspired, confederated and joined with LaPoint and did aid, abet and encourage said assault and battery. Defendant Treloar filed a motion to separate and divide the causes of action and to strike his name from the petition unless the causes were divided. He also moved to strike the name of the bonding company and all allegations in reference to said bonds. His motion was overruled and he appealed, securing a stay order pending the appeal.
Thereafter the cause proceeded to trial against the defendant LaPoint, resulting in a verdict for the plaintiff in the sum of $700. Judgment was entered thereon for said amount and costs, which judgment has been satisfied.
The plaintiff has filed a motion to dismiss the appeal. Supporting said motion are the certificate of the clerk and an affidavit of plaintiff's counsel from which it appears that the case has been tried, judgment recovered and the same satisfied, as above stated.
This court has repeatedly recognized and applied the rule that where two parties are asserted to be jointly liable in tort, a satisfaction of the cause of action against one joint tort-feasor is a satisfaction against all. Turner v. Hitchcock, 20 Iowa 310; Atwood v. Brown, 72 Iowa 723, 32 N.W. 108; Farmers Savings Bank v. Aldrich, 153 Iowa 144, 133 N.W. 383; Middaugh v. Des Moines I. C.S. Co., 184 Iowa 969, 169 N.W. 395; Phillips v. Werndorff, 215 Iowa 521, 243 N.W. 525; Paine v. Wyatt, 217 Iowa 1147, 251 N.W. 78. By reason of this rule, the recovery of judgment against LaPoint and the satisfaction thereof released and discharged defendant Treloar from any liability herein. Accordingly, the questions raised by his appeal are now moot. The motion to dismiss must be and it is sustained. — Appeal dismissed.
CHIEF JUSTICE and all JUSTICES concur.