Neither the jury nor the court can apportion damages among such joint tort feasors. See Schwehr v. Badalamenti, 14 Ill. App.2d 128, 134, 143 N.E.2d 558 (4th Dist. 1957); Michels v. Bezley, 12 Ill. App.2d 456, 459-462, 140 N.E.2d 134 (2nd Dist. 1957). In view of our disposition of the appeal we need not decide whether appellants should be deemed to have waived this issue.
Watters and Gallatin County contend that the verdicts were an improper attempt to apportion damages against joint tortfeasors, rendering the verdicts void and requiring a new trial. The argument rests upon authority of Michels v. Bezley, 12 Ill. App.2d 456, 140 N.E.2d 134 (1957), which held that a jury may not apportion damages against two or more joint tortfeasors, each found to be liable, by returning separate verdicts. We shall assume but not decide that Bezley would apply to vitiate the verdicts for Johnson against Hise and Watters and Gallatin County as joint tortfeasors, under the situation before us. On the basis of the post-trial motion, however, the Bezley decision does not preclude our entering judgment here on the verdict against Watters and Gallatin County.
Under Illinois law, multiple defendants are jointly and severally liable and there is no apportionment of damages among multiple defendants. Trzos v. Berman Leasing Co., 86 Ill. App.2d 176, 181, 229 N.E.2d 787, 790 (Ill.App.Ct. 1967); Michels v. Bezley, 12 Ill.App.2d 456, 459, 140 N.E.2d 134, 136 (Ill.App.Ct. 1957). Although a defendant in a multi-defendant case may have a right of contribution from another defendant, it does not affect the defendant's obligation to the plaintiff.
"[T]he jury may not * * * apportion damages between joint tort feasors and assess them severally." ( Michels v. Bezley (1957), 12 Ill. App.2d 456, 459, 140 N.E.2d 134.) The attempt at apportionment renders the jury verdict irregular, but the trial court may reject surplusage and mold the verdict into the proper form where the jury's resolution of the issues it was to decide is clear. ( O'Brien v. Palmer (1868), 49 Ill. 72; see Baumgartner v. Montavon (1934), 276 Ill. App. 498, 509-10.
Similar to In re Uranium Antitrust Litigation, it has also been held reversible error to enter separate money judgments in the same action where the defendants are charged with a joint and several liability for plaintiffs' indivisible injury. ( Michels v. Bezley (1957), 12 Ill. App.2d 456, 140 N.E.2d 134.) Nevertheless, there is no possibility of separate judgments in the same action here since, as we have noted, the defendants were dismissed from the first suit without prejudice before a money judgment was entered.
Further, he argues that it is unclear whether the jury meant to award $27,500 or $55,000. Thus, he asserts it was error for the trial court to make the judgment a joint one for $55,000 and that remandment for a new trial is warranted under the authority of Michels v. Bezley (1957), 12 Ill. App.2d 456, and Stoewsand v. Checker Taxi Co. (1947), 331 Ill. App. 192. Notably, defendant County of Kane does not challenge the modification of the award.
After the verdict on count III it was unnecessary for the jury to return a verdict on count I. The trial court unnecessarily sent the jury back twice to return a verdict on count I, and later properly dismissed that count upon timely motion. Defendant contends that where defendants were charged jointly, the plaintiff after judgment does not have authority to elect the judgment he will choose, citing Michels v. Bezley (1957), 12 Ill. App.2d 456, 140 N.E.2d 134. However, in Michels both defendants were charged jointly in both counts, and the court held that there could be no election after judgments were entered and the 30-day period following their entry had passed.
De Lude v. Rimek, 351 Ill. App. 466, 470-472, 115 N.E.2d 561 (1st Dist 1953). Compare Manthei v. Heimerdinger, 332 Ill. App. 335, 351, 353, 75 N.E.2d 132 (2nd Dist 1947). Also, if the defendants had acted in concert to produce a single and indivisible injury, then the jury should not have apportioned the damages and should not have assessed them severally. Schwehr v. Badalamenti, 14 Ill. App.2d 128, 134, 143 N.E.2d 558 (4th Dist 1957); Michels v. Bezley, 12 Ill. App.2d 456, 459, 140 N.E.2d 134 (2nd Dist 1957); 34 ILP Torts, sec 8, p 361. [12] It is only where the defendants have not acted in concert and have caused separate and distinct injuries that the damages are apportioned.
On November 23, 1960, the court denied Richter's motion. He appeals. [1] Appellant asserts that when plaintiff took judgment against Heffernan alone on August 5, 1960 (all defendants having been served with process) the effect was to dismiss the action against Richter and Hodapp, citing Chmielewski v. Marich, 350 Ill. App. 379, 382, 113 N.E.2d 210 (affd 2 Ill.2d 568, 119 N.E.2d 247); Martinez v. Seymour, 348 Ill. App. 112, 108 N.E.2d 30; Davis v. Taylor, 41 Ill. 405; Illinois Cent. R. Co. v. Foulks, 191 Ill. 57, 60 N.E. 890; McDonald v. Judson, 97 Ill. App. 414; Lynch v. City of Chicago, 152 Ill. App. 160; and Postal Telegraph Cable Co. v. Likes, 225 Ill. 249, 80 N.E. 136; and other cases. He states that the provisions of the Civil Practice Act have not changed the common law rules with respect to the entry of judgments in tort cases, citing Michels v. Bezley, 12 Ill. App.2d 456, 459, 140 N.E.2d 134. He maintains that on September 21, 1960, the court had no authority to vacate the judgment of August 5, 1960 against Heffernan, stating the well-known rule that an amendment of the record after the expiration of the term must be based on some note or memorandum from the records or quasi-records of the court, or the judge's minutes, or an entry in a book required by law to be kept, or in the papers on file in the case, and that it cannot be determined from the memory of witnesses or the recollection of the judge. McCord v. Briggs Turivas, 338 Ill. 158, 164, 170 N.E. 320; Martinez v. Seymour, 348 Ill. App. 112, 108 N.E.2d 30; Wilson v. Fisher, 369 Ill. 538, 542, 17 N.E.2d 216; Watson v. Watson, 11 Ill. App.2d 196, 200, 136 N.E.2d 530. This defendant concludes that as the court "lacked venue to hear the case, it should have either dismissed or transferred the cause to a court of proper venue."