Barnes v. Ennenga

Apr 23, 1880
Reporters:
,
Before:
Adams
Adams, Oh. J.

i. practice : m&ioinler. I. The appellants assign as error that the court erred in rendering a joint judgment. The appellants in their ‍​‌​​​‌​‌‌‌‌‌‌‌​‌​​​‌‌​‌​‌‌‌​‌​‌​​‌‌‌​​​​‌‌‌‌‌​​‌‌​​‌​‌‌‌​‌​‌‌‌‌​​‌​‌​‌​​‌‌‌‌‌‌​​‌​​​‌​‌​‌‌​​​​​‌‍answer pleaded that there was a misjoinder of causes of action. They evidently acquired the idea that there was a misjoinder from their understanding of the facts. But in determining the question of misjoinder we look to the petition. That avers simply a joint tort; hence there was ‍​‌​​​‌​‌‌‌‌‌‌‌​‌​​​‌‌​‌​‌‌‌​‌​‌​​‌‌‌​​​​‌‌‌‌‌​​‌‌​​‌​‌‌‌​‌​‌‌‌‌​​‌​‌​‌​​‌‌‌‌‌‌​​‌​​​‌​‌​‌‌​​​​​‌‍no misjoinder. The error, if any, of the court did not consist in rendering a joint judgment, but in rendering any judgment at all. A joint tort having been averred it was incumbent upon the plaintiffs to show a joint tort. If they failed, no judgment of any ‍​‌​​​‌​‌‌‌‌‌‌‌​‌​​​‌‌​‌​‌‌‌​‌​‌​​‌‌‌​​​​‌‌‌‌‌​​‌‌​​‌​‌‌‌​‌​‌‌‌‌​​‌​‌​‌​​‌‌‌‌‌‌​​‌​​​‌​‌​‌‌​​​​​‌‍kind should have been rendered. This precise point is not raised either by the appellants’ assignment of error or argument.

• II. The case was tried in the absence of the defendants’ counsel, and without any evidence upon the part of the de*498fendants being introduced. The defendants moved for ‍​‌​​​‌​‌‌‌‌‌‌‌​‌​​​‌‌​‌​‌‌‌​‌​‌​​‌‌‌​​​​‌‌‌‌‌​​‌‌​​‌​‌‌‌​‌​‌‌‌‌​​‌​‌​‌​​‌‌‌‌‌‌​​‌​​​‌​‌​‌‌​​​​​‌‍a new trial, upon tbe ground that there was a subsisting agreement between their counsel and the counsel for ajipellees that the action should not be tried that week. • The court overruled the motion.

It is not claimed that the agreement was in writing and signed by the attorneys, or ‍​‌​​​‌​‌‌‌‌‌‌‌​‌​​​‌‌​‌​‌‌‌​‌​‌​​‌‌‌​​​​‌‌‌‌‌​​‌‌​​‌​‌‌‌​‌​‌‌‌‌​​‌​‌​‌​​‌‌‌‌‌‌​​‌​​​‌​‌​‌‌​​​​​‌‍made in open court and entered of record. As the agreement is denied, the court did not err in overruling the motion. Code § 213.

Affirmed.