the jury to find for the defendant, as directed in the original opinion, it will submit to the jury only the issue of the defendant's negligence in failing to have the headlight to its engine burning, and the issue of the decedent's contributory negligence, together with an instruction upon the measure of damages. The original opinion, therefore, is modified to the extent herein indicated. come convinced that the part of the above ex- (181 Ky. 101) FENNELL v. FECHTER. (Court of Appeals of Kentucky. June 11, 1918.) CONSPIRACY 14-JOINT TORT-FEASORS JOINT AND SEVERAL LIABILITY. Where the employé of a druggist conspired suant to the conspiracy, with the assistance of with a third person to rob the druggist, and purthe third person, the employé stole goods of the value of $1,000 from his employer, the emhe could have sued his employé and the third severally liable to the druggist for his loss, and person jointly, or either of them separately, and recovered from them separately or jointly his full damages, as they were joint tort-feasors. 2. RELEASE 29(1) JOINT WRONGDOERS FAILURE TO RESERVE RIGHT AGAINST ONE. Where the employé of a druggist and a third person conspired to rob the druggist, which they did, and the third person paid the druggist $1,588 for a release, whereby the druggist acknowledged full payment and satisfaction of all claims and demands of every kind and character against the third person, and released him from further liability growing out of any claims or damages, it not appearing in the writing that the settlement with the third person was only in part satisfaction of the druggist's claim against his employé and the third person, only intended to release the third person without affecting the druggist's right to pursue his employé, the settlement made with the third person was a satisfaction of whatever claim the druggist had against both his employé and the third person growing out of the same wrongdoing, since, in the absence of express reservation, settling with the other. he could not settle with one of them without [4, 5] As stated in the original opinion, the evidence greatly preponderates that the head-ployé and the third person were jointly and light on defendant's engine at the time of the collision with the hand car in which decedent was riding was burning, yet there was sufficient evidence to authorize the court under the scintilla rule to submit that issue to the jury, although its finding that the headlight was not burning may have been flagrantly against the evidence. This modification also necessitates a brief consideration of the issue of contributory negligence, raised by the pleadings and relied upon by the defendant. Upon that issue it was shown that there were signal boards by the side of the track at stated distances, indicating that the train was in the block, and that there were a least two of them between Berea and the place of the accident, and it is insisted that it was negligence sufficient to defeat a recovery for the decedent not to have discovered the approach of the train by observing the signal indicated by those boards. But it is shown that the signals indicating the approach of the train were on the opposite side of the boards from the direction decedent was 、 traveling, and in order to see them he would have had to look backward, not being able to do so by looking forward, the way his hand car was traveling. The train producing the collision was not a regular one, but was a second section of a regular train, which had passed the hand car at the public crossing about four or five minutes before. There was nothing indicating to the decedent that an extra train was contemplated, or that a second section of the regular train was approaching. Under the circumstances we think the issue of contributory negligence CARROLL, J. The appellant, Fennell, filed was a question for the determination of the in the Campbell circuit court his petition jury under proper instruction. In all other against the appellee, Fechter, in which he respects the original opinion is adhered to. alleged that he was the owner of a drug store So, if the evidence upon another trial is in the city of Newport known as the Modern substantially the same as upon the last one, Drug Shop, and his manager in charge of instead of the court peremptorily instructing this store was Charles F. Bartholomew; For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 3. PAYMENT 51 JOINT WRONGDOERS CREDIT. joint wrongdoers, though it is not accepted in Where a payment is made by one of two satisfaction of the cause of action or the claim against all of them, the payment so made must go as a credit on the claim against the others. Appeal from Circuit Court, Campbell County. Action by C. R. Fennell against John Fechter. From judgment of dismissal, plaintiff appeals. Affirmed. Healy & Hawkins, of Newport, for appellant. Barbour & Bassmann, of Newport, for appellee. "that some time prior to the filing of this action the defendant conspired with the said Charles F. Bartholomew to wrongfully and unlawfully deprive plaintiff of goods and merchandise belonging to him which were in said drug store. He states that in compliance with said conspiracy he, with the assistance and knowledge of the said Charles Bartholomew, unlawfully and wrongfully removed and appropriated to his own use goods and merchandise belonging to this plaintiff to the value of $1,000. Wherefore he prays for judgment against defendant for the sum of $1,000." After this, Fennell filed an amended petition merely for the purpose of exhibiting, in an itemized statement, the character and quantity of the different articles alleged to have been taken from his store by Bartholomew. In his answer, as amended, Fechter denied all the allegations of the petition, as amended, and further set up that a few days after the petition was filed Fennell and Bartholomew executed and delivered, each to the other, the following writing: "Know all men by these presents: That C. R. Fennell and Charles F. Bartholomew do hereby settle all matters in controversy between them as follows: That for and in consideration of the sum of $652.88 cash paid by Charles F. Bartholomew to C. R. Fennell and the transfer by Helen Bartholomew, wife of Charles F. Bartholomew, of all the money deposited in her name in the Ideal Savings Loan & Building Association, and the Model Building & Loan Association, of Newport, Ky., to C. R. Fennell, said C. R. Fennell does hereby acknowledge full payment and satisfaction of all claim's and demands of every kind and description against the said Charles F. Bartholomew, and the said C. R. Fennell does hereby release said Bartholomew from all such claims and damages. And in consideration of the above release on the part of C. R. Fennell the said Charles Bartholomew acknowledges full and complete satisfaction of any claim or claims he may have against C. R. Fennell for any action taken by him or things spoken by him against the said Charles Bartholomew. Witness the hand of C. R. Fennell and Charles F. Bartholomew to this and a duplicate thereof this 25th day of September. C. R. Fennell. C. F. Bartholo mew." After averring that Bartholomew had paid to Fennell, in satisfaction of the conditions and obligations of the writing, $1,588, averred: "That said C. R. Fennell accepted said sum in full payment and satisfaction of all claims and demands of every kind and description against the said Chas. F. Bartholomew and released said Bartholomew from all such claims and damages sustained by the said C. R. Fennell; that said C. R. Fennell accepted said sum in full payment and satisfaction of any and all demands of loss and damage sustained by said C. R. Fennell by reason of the facts set out in the plaintiff's petition and amended petition: that said claims and demands set out in said petition and amended petition were included in these claims and demands referred to in said writing; that thereby the said plaintiff, C. R. Fennell, has received as compensation for the damages set out in said petition a sum more than equal to the full amount thereof; that thereby the said plaintiff has released and discharged this defendant from the claims set A demurrer to this answer was overruled and thereupon Fennell filed the following reply: "The plaintiff denies that when he received the sum set up in defendant's amended answer, or that when he received any sum, he accepted such sum or sums. in full payment or satisfaction, or any payment or satisfaction, of any demands of loss or damage sustained by him by reason of the acts of defendant as set up by him in his petition or amended petition; denies that said claims or demands set up in his petition or amended petition were included in the claims or demands referred to in his receipts to Charles F. Bartholomew; denies that he has received as compensation for the damages set out in his petition a equal to the full amount claimed by him, or has received any sum as compensation therefor; denies that he has released or discharged the defendant from the claims set forth in his petition. He states that the said writing to Charles F. Bartholomew was a release to him for property him from plaintiff while in the employ of plainand money wrongfully and feloniously taken by tiff, and that this defendant was not a party to said wrongful taking or known in the transaction." Thereafter the court entered an order reciting "that the affirmative matter in the answer presents a complete defense to the action and that by the reply is an insufficient response thereto," and then adjudged that the petition be dismissed. So that the only question upon this appeal is, Did the answer present a complete defense to the action, and was the reply an insufficient response thereto? [1] The petition charged a conspiracy between Bartholomew and Fechter to rob Fennell, and that pursuant to this conspiracy, and with the assistance of Bartholomew, Fechter had stolen goods of the value of $1,000. It is therefore plain that, taking the averments of the petition as true, Bartholomew and Fechter were jointly and severally liable to Fennell for the loss occasioned by their joint wrongdoing as alleged in the petition. If the facts set out in the petition were true, Fennell could have sued Bartholomew and Fechter jointly, or he could have sued either of them separately, and recovered from them, either separately or jointly, the full amount of damage he sustained. They were joint wrongdoers. [2] Turning now again to the writing between Fennell and Bartholomew, and reading the same in connection with the reply, it is apparent that the settlement between Fennell and Bartholomew included in whole or in part, it is not material which, the loss and damage that Fennell had suffered on account of the wrongdoing of Fechter and Bartholomew pursuant to the conspiracy between them to defraud Fennell. It is true that in the reply it is stated that the writing was only a release to Bartholomew for the value of the property wrongfully taken by him, but this allegation does not subtract anything from the purpose of the writing which was to release Bartholomew from further liability on account of the consideration of the payment by Bartholo- may sue any one or all, at his election; but mew of $1,588. Stated in perhaps simpler form, it may be put this way: Fennell had a claim against Fechter and Bartholomew growing out of their joint wrongdoing to his damage, and in consideration of a stipulated sum paid by one of the wrongdoers he released him from further liability. Now did this release, in the manner stated, of one wrongdoer release the other wrongdoer, or, in other words, did it satisfy the cause of action that Fennell originally had against both of them jointly and severally? In the consideration of this question, we do not think the circumstance that Fennell may have had a larger claim for damages against Bartholomew than he had against Fechter affects the merits of the case either one way or the other, because, assuming that the wrongdoing was pursuant to a conspiracy, Fennell could have recovered from either of the conspirators the full amount of his loss, although it appears that he only sought to recover from Fechter $1,000, while he received from Bartholomew $1,588, but he could have recovered from Fechter or Bartholomew either or both $2,588, if his loss by reason of the conspiracy amounted to as much. Coming, now, to the law applicable to the record before us, an instructive case is Louisville & Evansville Mail Co. v. Barnes, 117 Ky. 860, 79 S. W. 261, 25 Ky. Law Rep. 2036, 64 L. R. A. 574, 111 Am. St. Rep. 273. In that case the administrator of Barnes sued the Louisville & Evansville Mail Company, and the Marsden Company, charging that the death of his intestate was caused by the joint and concurring negligence of these two companies, although the negligence grew out of separate acts committed by each of them independent of the other. After a suit had been filed by the administrator against both of them to recover damages for his intestate, the Marsden Company settled the cause of action against it by the payment of $1,000, which was credited upon a judgment for $2,000 that had been rendered against the mail company. The mail company prosecuted an appeal from the judgment against it, which had been credited by the amount paid by the Marsden Company, and the question before this court upon the appeal was whether this operated as a release of the mail company. In disposing of the case, and holding that it did not release the mail company from its liability, the court said: "Our opinion is that, if the appellee had accepted this $1,000 in satisfaction of his cause of action or claim for damages, then it would have operated as a release and a bar to any other proceeding against appellant on account thereof. But it is shown by the proof without contradiction that it was accepted as only part satisfaction, and a release of the Marsden Company, but not in satisfaction of his cause of action and claim for damages. It is a universal He rule of law that joint tort-feasors are jointly and severally liable to the injured party. 203 S.W.-56 when he once receives satisfaction for the injury done him from one or more of the tortfeasors, he is barred from proceeding against the other joint tort-feasors. This is upon the idea that he is only entitled to one satisfaction, and to avoid his getting more than one compensation states which hold that any satisfaction from a for his injury. There are authorities in many release of one joint tort-feasor releases all. * * * The sole reason given in these opinions for the rule as stated is that it is to preone compensation or satisfaction for his injury. vent the injured party from receiving more than We are unable to understand why a part satisfaction and release of one tort-feasor can be for damages, and operate as a bar to his cause considered as complete satisfaction of his claim of action against the other tort-feasors. There can be no good reason for this. The collection of a part of satisfaction from one tort-feasor is a benefit to the others." This case, while it distinctly recognizes the general rule that where a person who has been injured by the act of joint tort-feasors receives satisfaction for the injury done him from one or more of the tort-feasors he is barred from proceeding against any of the others, also lays down the rule that when it clearly appears that the payment made bv one of the joint tort-feasors was only in part satisfaction of the claim against them, and only a release of the one making the payment the satisfaction received from this one will not be deemed a satisfaction of the cause of action or claim for damages against the other arising out of the joint wrongdoing, and we are not disposed to depart from this ruling or to extend it further, although there is much conflict in the cases on the subject of the effect of accepting satisfaction from one wrongdoer, as may be seen by the authorities cited in the case of Abb v. Northern Pac. Ry. Co., 28 Wash. 428, 6 Pac. 954, 58 L. R. A. 293, 92 Am. St. Rep. 864, and the extensive note to this case. See, also, Dwy v. Connecticut Co., 89 Conn. 74, 92 Atl. 883, L. R. A. 1915E, 800, and Thomas v. Maysville St. Ry. Co., 136 Ky. 446, 124 S. W. 398, 136 Am. St. Rep. 267. Adopting, then, as correct the principal announced in the Mail Company Case, it will be seen that the court put its decision distinctly upon the ground that the payment made by the Marsden Company as shown by the evidence was accepted as only part satisfaction, and a release of the Marsden Company only. Accordingly, we are brought directly to the question whether the payment by Bartholomew was only in part satisfaction of the claim Fennell had against Bartholomew and Fechter, and only intended to release Bartholomew without affecting any cause of action Fennell might have against Fechter, and this question must be determined by the writing entered into between Fennell and Bartholomew, because there is no effort to show any mistake in this writing, or that it did not express the true intent of the parties. Turning now again to this writing, we find that Fennell acknowledged full payment and satisfaction of all claims and demands of 130(2) An administratrix has no right of action for recovery of intestate's land unless as administratrix she has an interest therein, the land becoming property of the heirs and not of personal representative. 5. JUDGMENT 343-VACATION-EFFECT ON RIGHTS OF PARTIES. every kind and character against Bartholo- (4. EXECUTORS AND ADMINISTRATORS A judgment setting aside a prior judgment in same action will not be vacated where vacation will not affect the interests of the parties thereto. Appeal from Circuit Court, Madison County. [3] There is yet another view of the matter that should be noticed. All the authorities agree that where a payment is made by one of two joint wrongdoers, although it is not accepted in satisfaction of the cause of action or the claim against all of them, the payment so made must go as a credit on the claim against the others. Now, if we should apply that rule to this case, the claim of Fennell sued on would be extinguished by the payment made by Bartholomew, as it amounted to $588 more than the claim asserted by Fennell against Fechter. Wherefore the judgment is affirmed. (181 Ky. 21) FRANCIS v. RICHMOND MINING CO. et al. (Court of Appeals of Kentucky. June 7, 1918.) 1. APPEAL AND ERROR 113(2) VACATED JUDGMENT. Where a judgment is rendered setting aside a prior judgment in same case, an appeal will not lie from such prior judgment until the judgment setting it aside is vacated. 2. JUDGMENT an Action by Laura E. Francis and others against the Richmond Mining Company and Central Coal & Iron Company, in which the plaintiff named, after joining as plaintiff, filed answer and cross-petition. From the judgment plaintiff named and defendant Central Coal & Iron Company appeal. Upon subsequent rendition of another judgment in same case purporting to be by agreement of parties and setting aside first judgment, the plaintiff named plaintiff named filed an amended petition in equity, praying that agreed judgment be vacated, and from judgment thereon dismissing petition and from first judgment filed plaintiff named appeals. Dismissed as to the Central Coal & Iron Company, and judgment dismissing proceedings to vacate agreed judgment affirmed as to other appellee. R. S. Crawford, of Lexington, and Fears & Fears, of New Castle, for appellant. Trabue, Doolan & Cox and J. Blakey Helm, all of Louisville, and John C. Chenault and Burnam & Burnam, all of Richmond, for appellees. HURT, J. The appellant, Laura E. Francis and others, who were stockholders in the Richmond Mining Company, instituted this suit against the Central Coal & Iron Company, which was also a stockholder, for a dissolution of the first-named company, and a sale of its assets and a division of the proIceeds of the sale of the assets in accordance with the respective interests of the stockholders. The petition, among other things, averred that of a certain tract of land, which was situated in Muhlenberg county, the legal title had been conveyed to Lewis Francis, W. B. Smith, C. J. Bronston, and A. B. Lyman, but that the legal title thereto was vested in the above-named parties as trustees for the corporation. The further allegation was made that the Central Coal & Iron Company had had the possession and use of all the real property of the corporation sought to be dissolved for a considerable number of years and it was proposed to Where an alleged agreed judgment is render- make it liable to the stockholders for the ed vacating a prior judgment in same action, rents and profits. The appellant, after joinand proceedings are brought to vacate the agreed ing in the petition as plaintiff in her own judgment, an appeal from judgment dismissing proceedings will not lie as against an adverse right, thereafter filed an answer and crossparty not made a party to such proceedings. petition, in which she claimed to be the 399-PROCEEDINGS TO VA CATE-ADVERSE PARTIES. A judgment setting aside a prior judgment in same action remains valid until vacated by proceedings to which the adverse parties in interest are made parties. 3. APPEAL AND ERROR_327(4) - PROCEEDVACATE JUDGMENT ADVERSE INGS ΤΟ owner in her own right of 80 shares of the capital stock of the Richmond Mining Company, and that as administratrix of Lewis Francis was the owner of an undivided onefourth interest in a tract of land of which Francis, Smith, Bronston, and Lyman had held the legal title, and denied that her intestate held the interest in the land as trustee. The Central Coal & Iron Company filed an answer, counterclaim, and cross-petition, in which it claimed to be the sole owner of the tract of land. On the 28th day of May, 1910, the court rendered a judgment to the effect that the land was owned by the Richmond Mining Company, and that it should be sold for the purpose of winding up the concern and liquidating its affairs. The appellant and the Central Coal & Iron Company excepted to the judgment, and prayed an appeal to this court, which was granted. After the entry of the above judgment, and on the same day, another judgment was rendered in the action, which purported to be done upon and by agreement of all the parties. In this judgment it was recited that it was agreed that the tract of land, in which appellant claimed an interest, was the property of the Richmond Mining Company, and that Francis, Smith, Bronston, and Lyman held the legal title, as trustees, for the corporation, and that all the shares of stock in the company, including those owned by appellant, be transferred to the Central Coal & Iron Company, and that it should thereby be the owner of all the property of the Richmond Mining Company, that the answers and cross-petitions of the Central Coal & Iron Company and the appellant be withdrawn, and that the first judgment be set aside and held for naught; and the master commissioner of the court was directed to convey the lands mentioned to the Central Coal & Iron Company. Subsequently, on the 23d day of September, 1911, the appellant in her own right filed in the clerk's office a pleading, which was denominated an "amended petition in equity," otherwise having the style in which the foregoing judgments were rendered, and prayed that the foregoing agreed judgment be vacated upon the ground that it was entered without her knowledge or consent, and that she had learned of its rendition immediately before the filing of the paper. Thereafter, on August 7, 1912, and April 3, 1913, amendments to this pleading were filed. All of the parties to the judgments of May 28, 1910, or their representatives were either summoned or entered their appearances to the amended petitions, except the Central Coal & Iron Company, which does not seem to have been brought before the court in any way. On October 11, 1915, the action was submitted for trial, and judgment upon the amended petition in equity and its amendments, and the court adjudged that they be dismissed. The appellant excepted and prayed an appeal from the first judgment rendered on May 28, 1910, and from the one of October 11, 1915. [1-3] The Central Coal & Iron Company, having been summoned to answer this appeal, has made a motion to dismiss the appeal as to it. An appeal cannot lie from the first judgment rendered on May 28, 1910, because, it having been vacated and set aside by the second judgment rendered on that day, it does not exist, until the judgment which set it aside is vacated. The latter judgment remains valid and binding until vacated in the manner provided by law. In a proceeding to vacate it, it is necessary to make the adverse parties in interest parties to the proceeding. If grounds for a new trial are discovered after the term at which the judgment was rendered, relief can be obtained by a petition filed for that purpose, but to answer which the adverse party must be summoned. Section 344, Civil Code. To vacate or modify a judgment because of a clerical misprision, a motion must be made for that purpose, but the adverse party must have notice of the motion. Section 519, Civil Code. To vacate or modify a judgment upon the other grounds provided in subsections 4, 5, 6, 7, and 8 of secwith the clerk, seeking the relief, and the adtion 518, Civil Code, a petition must be filed verse party must be summoned. Section 520, Civil Code. An appeal does not lie against one from a judgment when such party was not a party to the proceedings in which the judgment was rendered. The Central Coal & Iron Company not having been made a party to the proceeding in which it was sought to vacate the agreed judgment of May 28, 1910, and in which the judgment appealed from October 11, 1915, was rendered, the appeal as was rendered, and in which the judgment of to the Coal & Iron Company must be dis missed. [4,5] The other appellees were parties to all three of the judgments, and make no objection to the agreed judgment of May 28, 1910. The interests transferred by them to the Central Coal & Iron Company, in the agreed judgment are separate and distinct interests from the interest claimed by appellant, in this, that a specific number of shares of the capital stock is transferred by them to the Coal & Iron Company, and the same appears to have been done by the appellant. In the action, which resulted in the first judgment of May 28, 1910, the appellant claims to have been the owner of an interest in the land as the administratrix of Lewis Francis. It is very clear that as such she cannot maintain an action for the recovery of the land, as it would be the property, not of the personal representative, but of the heirs of Lewis Francis, and she alleges no reason for an interest in it as a personal representative. In the agreed judgment of May 28, 1910, the only property of which she was the owner, which was transferred to the Central Coal & Iron Company, was 80 shares of the capital |