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plying and amending proof of service of process, is not to make void valid, but to make valid valid; or in other words, it is to show the true character of the judgment; that it is not and never was void, as might be inferred in the absence of proof of the service, but is and over has been valid.
To support judgments entered upon insufficient proof of service of process, or without the proof of such service appearing in the record, courts have uniformly permitted such proof to be amended or supplied, not for the par pose of authorizing them to enter new judgments based upon such proof, but to show that judgments previously entered were not entered without jurisdiction, and are not and never were void: Alison v. Thomas, 72 Cal. 562; 1 Am. St. Rep. 829; Shenandoah V. R. R. Co. v. Ashby's Trustees, 86 Va. 232; 19 Am. St. Rep. 891; Burr v. Seymour, 43 Minn. 401; 19 Am. St. Rep. 245; Estate of Newman 76 Cal. 213; 7 Am. St. Rep. 146; Frisk v. Reigelman, 76 Wis 499; 17 Am. St. Rep. 198; Freeman on Judgments, 4th ed., 160. 89 b.
BERONIO V. SOUTHERN Pacifio RAILROAD COMPANY.
[86 CALIFORNIA, 415.] JUDGMENT, MERGER BY.-ONE TORT CAN GIVE BUT ONE CAUSE OF ACTION,
though it injures different parcels of property. Hence if a railway is wrongfully constructed and operated along a street in front of two loto situated a short distance from each other, but belonging to the same proprietor, and he brings an action to recover damages occasioned to one lot by the railroad, his claim for damages to both is merged in the judgment, and there can be no further recovery. H. L. Poplin, and Barnes and Shelby, for the appellant.
R. B. Canfield, and Blackstock and Shepherd, for the respondento
Fox, J. The town of San Buenaventura is a municipal corporation. The legal title to the lands comprising Front Street in said town was granted to the then town authorities October 13, 1869, as a public street, to be forever kept open and maintained as such, and not to be used for any other purpose, nor be diminished in width.” On the 4th of October, 1886, the president and board of trustees of the town, by ordinance, granted to the defendant a right to lay, maintain, and operate a single or double track railroad along and upon said Front Street for the whole length thereof, from a point near Kalobama Street, etc. The plaintiff owned two lots fronting on the north side of said street, one situate in block 19, and one in block 20, the two being separated by a distance of 260 feet. The railroad was constructed along said Front Street prior to September 13, 1888, and on that day plaintiff commenced an action against defendant for damages to his lot situate in block 19, by reason of a cut and fill made in the construction thereof, and on the twenty-sixth day of January, 1889, the amount of plaintiff's damages were agreed upon and settled between the parties, and paid by defendant to plaintiff, and thereafter, in pursuance of the agreement between the parties, judgment was entered in the cause in favor of defendant. Afterwards the defendant put in a switch on the south side of the street, opposite said block 19, and thereupon the plaintiff brought this action, alleging in the first count of his complaint damages by reason of the construction and maintenance of said railroad in front of his lot in block 20, and in the second count, damages to his said lot in block 19, accrued since the former settlement and judgment, by reason of the continuance of said railroad, and the operation thereof, and of the construction of said switch in front of his said lot in block 19.
The defendant denied all the allegations of the complaint other than those of incorporation, pleaded its license from the municipal authorities, and as a separate defense to the second cause of action, pleaded the former settlement, payment, and judgment in bar. At the trial, after the jury was impaneled, but before the introduction of any evidence, defendant moved the court for leave to amend its answer, by pleading the former settlement and judgment as a bar to all the causes of action set out in the complaint. To this the plaintiff objected, on the ground that the amendment did not constitute a defense. After argument, the court overruled the objection, and the amendment was made, the court not imposing terms, to which plaintiff excepted, but plaintiff asked no continuance on account of such amendment. Plaintiff then introduced some evidence tending to show damage to his lot in block 20 by rea
the construction of said railroad, a cut of eighteen inches in depth having been made in the street by reason thereof. Defendant then introduced the judgment roll in the former case, which was admitted without objection, and it was admitted by the parties that the parties to that action were the same as to this; that the railroad mentioned in the former complaint was one and the same railroad as that mentioned in this case; that plaintiff at the time owned the same lots as now, and was then the owner of the same cause of action upon which he now claimed under his first count of the present complaint; and that the said two lots were separated by a distance of 260 feet. Plaintiff then proposed to introduce fur. ther evidence as to his damage to the lot situate in block 20, the cause of action mentioned in the first count of his complaint, — but the court ruled the same out, on the ground that his claim for such damages was barred by the said former judgment. Plaintiff admitted that he had no claim for damage to his lot in block 19, caused by the construction of the railroad's main track.
The record fails to show the introduction or offer of any evi. dence of damage by reason of the construction and maintenance of the switch. The plaintiff asked the court to instruct the jury that the former settlement and judgment were not a bar to any claim for damages done to the lot in block 20; that such damages, if any, constituted a separate cause of action from that sued for in the former case, and if any such were found, the same should be included in a verdict for plaintiff. The court refused to so instruct the jury, and, on the contrary, instructed the jury that, as the case was presented, the only question for their consideration was the damages, if any, done to the lot in block 19 by reason of the construction and operation of the switch and side-track in front of his premises in that block. To all these rulings the plaintiff excepted.
We think there was no error in the rulings or instructions of the court in this behalf, so far as relates to any damage accruing to either of plaintiff's lots prior to and up to the time of filing his complaint or making his settlement in the former action. The elements of his damage up to that time may have been multifarious, but the cause of it was a unit -- the construction and operation of a single railroad which was complete at the time. The fact that it damaged two lots belonging to the same man, at the same time and by the same means, no more created two causes of action than if two horses belonging to the same man had been killed by a single collision with a locomotive, and this has been held to constitute but a single cause of action: Brannenburg v. Indianapolis etc. R. R. Co., 13 Ind. 103; 74 Am. Dec. 250. In cases of tort, the question as to the number of causes of action which the same person may have turns upon the number of the torts, not upon the number of different pieces of property which may have been injured. Each separate tort gives a separate cause of action, and but a single one: 1 Sutherland on Damages, 183, and cases cited. Whenever by one act a permanent injury is done, the damages are assessed once for all: 3 Sutherland on Damages, 372. This principle is established in Marble v. keyes, 9 Gray, 221, and in very many other cases. There is
nothing in the authorities cited by appellant in conflict with this view.
Appellant claims that he was entitled to recover for the damages sustained by the continued operation of the railroad after the settlement and judgment in the former case. This claim conflicts with the authorities already cited, but under Hopkins v. Western Pac. R. R. Co., 50 Cal. 190, and Ford v. Santa Cruz R. R. Co., 59 Cal. 290, there might be some force in the argument, if there was anything in the case upon which to base it. But the record shows that plaintiff admitted that he had no claim for damages to the lot in block 19, accruing after the date of the former complaint, and it fails to show any proof of damages to either lot after that date.
Appellant also claims that he was entitled to recover for the damages to his lot in block 19 by reason of the construction and operation of the switch and side-track. The court ruled in his favor in that regard, and he proved the fact of the construction and operation of the switch and side-track, but his record fails to show that he offered to prove any damages by reason thereof. We cannot therefore disturb the verdict of the jury in that regard.
Appellant also complains of the action of the court in permitting the answer to be amended after the jury was impaneled, and in denying his subsequent motion to strike out the amendment. This was a matter entirely in the discretion of the court. The plaintiff does not seem to have been taken by surprise, or to have suffered any injury therefrom, and we do not perceive that there was any abuse of discretion.
Judgment and order affirmed.
Works, J. (concurring). I concur in the judgment. Under the circumstances of this case, the lots claimed to have been affected lying near to, if not adjoining, each other, and the road being completed at the time the first action was brought, the settlement of that case was rightly held to be a bar to the second action. But a case might arise where a road being constructed would pass over and affect two tracts of land owned by the same person, the tracts being a long distance apart, and that part of the road affecting one piece of land be constructed long before the part affecting the other piece. In such a case, the construction of the whole road could not with any propriety be treated as but one act, and the land-owner be compelled to delay his action until the whole road is completed, and join his action for damages to both pieces of land, or bring his action for both, when it may be uncertain whether the last part of the road will ever be completed or not. Under such circumstances, separate actions should be allowed, and, in my judgment, the opinion of Mr. Justice Fox is too broad in its language in this respect.
JUDGMENTS — MERGER OF ORIGINAL CAUSE OF ACTION. – A recovery of part of an entire demand merges the whole, and bars any further recovery thereof: Oliver v. Holt, 11 Ala. 574; 46 Am. Dec. 228; for an entire demand cannot be split up so as to authorize the bringing of several suits thereon: Bendernagle v. Cocks, 19 Wend. 207; 32 Am. Dec. 448, and note 454, 455.
Daly v. PENNIE.
(86 CALIFORNIA, 552.) JUDGMENTS. — RELIEF FROM AN ERRONEOUS ORDER OF A COURT DISTRIBUT.
ING AN ESTATE of a decedent must be sought by an appeal, and cannot
bo obtained by a bill in equity, to restrain compliance therewith. JUDGMENTS. — RELIEF FROM A JUDGMENT WILL NOT BE GRANTED IN EQUITY
on the ground that the attorneys or their clerk inadvertently omitted to file an undertaking on appeal therefrom, for which omission such appeal
was dismissed, and all remedy thereby lost. JUDGMENTS. - RELIEF FROM A DECREE DISTRIBUTING THE ESTATE of a de.
cedent will not be granted in equity on the ground that the persons interested did not receive any personal notice of the proceedings, if the statute did not require such notice and there is no allegation that such notice as it did require was not given.
Henry E. Wills and John F. Burris, for the appellants.
HAYNE, C. The defendants had final judgment upon demurrer to the second amended complaint, and the plaintiffs appeal. The material facts shown by the pleading are as follows:
Anna J. Skerrett died in London, England, being a resident of said place at the time of her death, and leaving a will, This will was proved in an English court, and an administrator with the will annexed appointed there. A duly authenticated copy was filed in the probate court of San Francisco, and the defendant Pennie was appointed administrator with the will annexed here. In due course, the San Francisco