1. A motion was made in the Supreme Court to dismiss the bill of exceptions, on the grounds: (1) That it appears from the record that C. H. & B. S. Cohen, a law partnership composed of C. Henry Cohen and B. S. Cohen, were parties defendant in the litigation, and directly interested in having the judgment of the trial court sustained; that they are not parties defendant to the bill of exceptions, that they had not been served with a copy of the bill of exceptions and had not acknowledged service or waived service of the bill of exceptions. (2) That said partnership was a necessary *714and indispensable party to the bill of exceptions. (3) Because it appears from the record that Samuel EL Myers was a party defendant to the litigation in the court below and is directly interested in having the judgment of the trial court sustained, and, though a necessary and indispensable party to the bill of exceptions, he has not been served with a copy of the bill of exceptions and has not acknowledged or waived service. It appears from an inspection of a petition filed by the Commercial Credit Company, as specified in the bill of exceptions and included in the transcript of the record sent to this court, that the attorneys of record for the Commercial Credit Company were “Samuel EL Myers, C. ELenry & R. S. Cohen.” It was alleged in a subsequent petition that was filed by Sam Denny, J. R. Powers, G. E. Youmans, and the Automotive Supply Company, January 17th, 1923, “that of and from the said $30,000 deposited in this State as aforesaid, approximately $9,500 was paid out to the officers of the court, attorneys, and other expenses incident to disbursing the said fund; that only about $8,500 has been properly applied to the payment of the claims of policyholders in this State, and which claims in the aggregate amount to approximately $65,000; that the remaining amount of said fund, to wit: $11,686.51, has been impounded by garnishment proceedings issued in this case and served upon the attorneys of récord for the Commercial Credit Company;” and “that counsel for said Commercial Credit Company having obtained possession of said checks, a number of intervenors herein have been induced and pursuaded into signing and indorsing the said checks, and in this way they have obtained the sum of $7,938.94, and which has been impounded in this court by the aforesaid garnishment proceedings.” And in the same petition it was prayed: “That this honorable court do pass an order requiring the said Commercial Credit Company and the said garnishees in this case to turn over to the clerk of court the aforesaid sum of $11,686.51, and that the same be held by him subject to the further orders of this court,” and further, if it should appear that the funds have been turned over to the Commercial Credit Company and are without the jurisdiction of the court, or should the said Commercial Credit Company fail to comply with the orders and decrees of this court with reference to refunding said funds, that your petitioners do have and recover joint and several *715judgments “against the said Commercial Credit Company and the said garnishees in this case, for the full amount of the claims of your intervenors herein.” It appears that Samuel H. Myers and C. Henry & R. S. Cohen were the attorneys of record for the Commercial Company, and in the petition last referred to were alleged to be persons against whom substantial relief was alleged and prayed; but it does not appear that the petition was served upon them, or that they acknowledged service or waived service, or that they had been otherwise made parties and served in the proceeding in this case. In these circumstances the judgment of the trial court was not in any sense binding upon them. This being so, they were not necessary parties defendants in error; and the motion to dismiss the bill of exceptions will be denied.
2.The record specified in the bill of exceptions and sent to this court contains a great deal of superfluous matter that tends to confusion. The controlling allegations are to be found in the petition filed by Sam Denny on May 15th, 1922, and the subsequent amendments thereto. That petition was directed against the Commercial Credit Company. Sam Denny had participated in everything that had been done before, including the consolidation of the eases, the reference of the consolidated case to an auditor, the trial before the auditor; and finally the right which Denny now seeks to enforce, as well as the rights of J. R. Powers, G. E. Youmans, and the Automotive Supply Company, relate to claims for specific amounts as allowed by the auditor. In the proceedings prior to the hearing before the auditor Denny was on the same side of the litigation with the Commercial Credit Company. The subject of contention now is checks issued by the receiver for the respective amounts found by the auditor for Sam Denny and the above-mentioned intervenors ; and the question as to the interest of Sam Denny and the other named intervenors. Relatively to Sam Denny paragraphs two, three, eight, nine, and ten of the petition first above mentioned relate to this question. It is there alleged, in substance, that the auditor allowed Denny $2135 on his claim for loss under his policy of insurance; that the policy was in possession of the Commercial Credit Company; that the Commercial Credit Company and Denny were beneficiaries under the policy as their interests might appear; that the check was made payable to the attorneys of the parties; *716that the Commercial Credit Company has no just interest in the checks, but is claiming practically all the fund, and refuses to indorse the check to the rightful owner; that the pretended- claim of the Commercial Credit Company rests on a separate contract between that company and Denny, dated October 24, 1919, now in possession of the company; that the claim under that contract was not submitted to the auditor or included in the record of the case; that the reason the Commercial Credit Company has no just interest in the check or claim against Denny is “that the property . . out of which the said purported claim arises, was destroyed by fire; and the title to the said property being in the said Commercial Credit Company, the said loss, under the law, falls upon the said Commercial Credit Company.” The prayers included one that the court would inquire into all matters alleged; and establish the respective rights of all parties. Elaborative allegations were included in the subsequent amendment filed on January 17, 1923, in which there were prayers of similar import. The nature of the claim alleged to be founded on the contract of October 24, 1919, is not sufficiently alleged to enable the court to say that it is or is not a valid claim; but after all, there are the general allegations that the claim is based on that contract; that the contract is in possession of the Commercial Credit Company, and that it is an invalid claim and being used as a pretense for holding the check; that the check is one in which Sam Denny has an unascertained interest for which he seeks a decree. There was sufficient in this petition to support appropriate amendment, and it was erroneous to dismiss the petition, as stated in the judgment excepted to, on the ground that “the same failed to set forth a cause of action.” It is unnecessary to discuss other questions referred to in the transcript of record that was specified in the bill of exceptions and transmitted to this court, or in what respect it would be proper to amend the petition by adding other allegations, as the trial judge only sustained the general demurrer, and no special grounds of demurrer are for decision. Judgment reversed.
