No argument or brief has been furnished on the part of the plaintiff in error, and we therefore have only to look to the record and the assignment of errors, to determine therefrom whether or not eri*or has intervened.
The assignment in this coui-t, in a petition in error to the district court, that the court of oommon pleas erred in overruling the demurrer to the petition of the plaintiffs, or in any other respect as a cause for reversing the judgment of the distx-ict court, the case having been appealed to that court from the common pleas, is wholly irrelevant.
If counsel desired to present the question so made in the-common pleas to this court, he should have forborn an appeal, and relied upon a petition in ei-ror to the common pleas ; or, after appeal, he should have taken leave in the district court to withdraw the answer and refile his demurrer, so as to present the question thereby raised after appeal.
But while the district court is clearly not chargeable with the action of the common pleas in overruling the demurrer, it seems to have given a like judgment, or to. the same effect, in overruling the motion for a new trial, thereby holding that proof of the averments made in the petition authox-ized and sustained the verdict. The district court, therefore, in overruling the motion for a new trial, held the averments in the-
The objection to the petition is not that there is a defect of parties plaintiff, but a misjoinder appearing in the petition.
At common law, if the wife improperly join in the action with her husband, who ought to sue alone, the defendant might, for that cause, demur to the declaration, or the same might be taken advantage of after verdict, as a good cause for arrest of judgment; or if judgment in such a case should be entered, if the objection appeared upon the record, the same would constitute good cause for a reversal of the judg•ment, on a writ of error.
The general rule, in relation to the commencement of an action, is that the action must be brought in the name of the party whose legal right has been affected. And unless this rule be regarded, inasmuch as a party is only entitled to recover according to his allegations and proof, that is, according to the cause of action for which he sues, and upon proof thereof, no recovery can be legally had, unless the action be brought by the person whose legal right has been so affected. Hence it is material in every statement of a cause of action, to set forth such facts as show, among other things, that the legal right of the plaintiff, or plaintiffs, has been affected. For, it being incumbent upon the party asking redress, to state and prove a wrong, or an infringement of his right, to be redressed, no judgment can be duo, except upon such cause stated and approved.
But while, at common law, the misjoinder of the wife, or .any other party, as plaintiff, with the party or parties whose
From what has been said in relation to stating and proving such facts, as show that the legal right of a party has been affected, to authorize a judgment in his favor, it is evident that a misjoinder of plaintiffs would, under the code, be within the sixth enumerated cause for demurrer. The very evidence of the misjoinder, would be that the petition did not state facts sufficient to constitute any cause of action in favor of the person so improperly made a co-plaintiff with the person or persons to whom the right of action in the case belonged, as shown by the petition. For it is obvious, that inasmuch as the action is commenced in the names of the two, the judgment must be rendered in favor of both or neither. The petition in such case asks a judgment in favor of both plaintiffs upon a joint cause of action in their favor. If, therefore, the petition fails to state facts sufficient to constitute such joint cause of action, it necessarily fails to state facts sufficient to constitute any cause of action as to the plaintiffs.
How, then, stood the case ? Does the petition state facts sufficient to constitute a cause of action in favor of Owen O’Neil and Bridget O’Neil against Samuel W. Bartges ? What is the particular cause of action stated in the petition, and relied upon by the plaintiffs, as constituting the right of recovery in the case ?
The petition, it is true, states the purchase of the Illinois-lands to have been made by the plaintiffs; and the representations as to the situation, quality and value of the lands are stated to have been made by Bartges to them, the plaintiffs; yet, when taken all together, it appears from the petition that the purchase of the lands was made by Owen O’Neil, and that he paid the entire consideration; and that Bridget O’Neil was in no way interested, except to receive a conveyance of the title of the land so purchased by Owen. But the action is brought to recover for a cheat practiced by the defendant ; and if the alleged cheat was proved, the party cheated would be legally entitled to recover the damages-
The district court erred, therefore, in overruling the defendant’s motion for a new trial, as the common pleas did in overruling his demurrer to the petition. For it necessarily follows, that inasmuch as. the evidence was the same as the averments, and the averments were insufficient, the evidence was likewise insufficient to sustain the verdict, and authorize a judgment for the plaintiffs.
But it is insisted by counsel of defendants in error, that the plaintiff in error has not in fact been prejudiced by the fact that the judgment was rendered in favor of both, instead of but one of the plaintiffs, and that, therefore, the judgment should not be reversed. But in a case like the •..present, where error has clearly intervened in the record, a
It is sufficient, therefore, to say, without remarking more at length upon the other assignments, that for the errors mentioned, the judgment of the district court must be reversed, and the cause remanded to that court, for further proceedings.
Judgment accordingly.