On Petition poe Reheaeing.
Monks; J.An earnest and able petition for rehearing has been filed by the “Monon” company.
It is claimed “that this court erred in reversing the judgment as to the ‘Clover Leaf’ company and affirming it as to the ‘ Monon’ company because a judgment *702at law cannot be reversed as to one joint defendant and affirmed as to the other. ”
The authorities cited by appellant in support of the rule asserted can have no force in this State, for the reason that the question is regulated by our code of civil - procedure. Section 570, R. S. 1881; section 579, R. S. 1894, provides: “Though all the defendants have been summoned, the judgment may be rendered against any of them, severally, when the plaintiff would be entitled to judgment against such defendants if the action had been against them severally.”
Section 568, R. S. 1881; section 577, R. S. 1894, provides : “Judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants; and it may, when the justice of the case requires it, determine the ultimate rights of the parties on each side as between themselves. ”
Section 569, R. S. 1881; section 578, R. S. 1894, provides that “In a suit against Several defendants, the court may, in its decision, render judgment against one or more of them, leaying the action to proceed against the others whenever a several judgment is proper.”
Under these sections it has been held by this court that the trial court' possessed chancery powers in adapting its judgment to the rights of the parties. Draper v. Vanhorn, 12 Ind. 352; Douglass v. Howland, 11 Ind. 554; Cutchen v. Coleman, 13 Ind. 568; Home Ins. Co. v. Gilman, Exr., 12 Ind. 7 (9).
That if a plaintiff sue two or more jointly and-only prove a liability as to one, he is entitled to a judgment against that one. Stafford v. Nutt, 51 Ind. 535, and cases cited on page 538; Louisville, etc., R. W. Co. v. Duvall, 40 Ind. 246; Moyer v. Brand, 102 Ind. 301 *703(306); Thornton Ind. Prac. Code, annotated, sections 568, 569, 570, and notes.
In Lower v. Franks, 115 Ind. 334, on p. 337, this court, in speaking of the foregoing sections of the code of civil procedure, said : “In the case of Hubble v. Wolf, 15 Ind. 204, following the case of Blodgett v. Morris, 14 N. Y. 482, it was held in terms that this provision of the code applies to all actions indiscriminately, whether founded upon contract, or upon tort; that it is immaterial whether the complaint alleges a joint or a joint and several liability; that the right of recovery is, in this respect, to be regulated by the proof, and not by the allegations of the complaint; that, in other words, every complaint is, in the respect stated, to be treated as both joint and several where there are two or more defendants; that the object of the provision obviously is to prevent a plaintiff who proves a good cause of action against part of the defendants, but not against all, from being put to the expense and delay of a new action.” In this case each appellant separately moved the court below to render judgment in its favor, which motions were each overruled, and the judgment rendered against both appellants. The Clover • Leaf’s motion for a judgment in its favor on the special verdict should have been sustained, and judgment rendered by the court accordingly. The mandate of this court merely directs the court below to render the judgment that should have been rendered in the first instance. The Monon company is in the same situation as if the court below had sustained the motion of the Clover Leaf company, and rendered judgment in its favor, and the Monon company had alone prosecuted this appeal. Besides, it is expressly provided by statute that this court may reverse a case in whole or in part. Sections 660, 661, R. S. 1881; sections 672, 673, R. S. 1894.
*704It has been uniformly held by this court, since the code of civil procedure took effect in 1853, that a case may be reversed as to a part of the appellants, and affirmed as to others, and such has been the uniform practice. Louisville, etc., R. W. Co. v. Duvall, supra; Steeple v. Downing, 60 Ind. 478 (503-504); Dodge v. Dunham, 41 Ind. 186 ; State, ex rel., v. Mills, 82 Ind. 126; Lower v. Franks, supra; Citizens’ Street R. W. Co. v. Robbins, Admr., 128 Ind. 449; Haxton v. McClaren, 132 Ind. 235; English v. Aldrich, 132 Ind. 500; Spaulding v. Spaulding, 133 Ind. 122; Eppert v. Hall, 133 Ind. 417; Haskett v. Maxey, 134 Ind. 182 ; Irey v. Mater, 134 Ind. 238 ; Clark v. Hillis, 134 Ind. 421; Duckwall v. Kisner, 136 Ind. 99 ; Offutt v. Cooper, 136 Ind. 701; Small v. Kennedy, 137 Ind. 299; Radican v. Buckley, 138 Ind. 582; Flora v. Russell, 138 Ind. 153; Garr, Scott & Co. v. Shaffer, 139 Ind. 191.
This cause was not i*eversed upon the evidence as to the Clover Leaf company, as stated in the petition for a rehearing, but upon the special verdict, for the reason that the facts stated in the special verdict entitle the Clover Leaf company to a judgment. It is insisted that the cause should be reversed as to the Monon company, for the further reason “that an invisible and inseparable part of the damages assessed by the jury, was essentially assessed against the Clover Leaf company.” No part of the damages assessed by the jury was assessed against either company, but the amount fixed was such as, in the judgment of the jury, would compensate appellee for her injuries. It was left to the court to say, as a matter of law, whether judgment should be rendered for the same against both, or only one of the appellants.
Filed November 6, 1895.The other questions presented in the petition for a rehearing were fully considered and determined in the original opinion.
The petition is, therefore, denied.