Andres v. Kridler

• Decision Date: 20 November 1894
• Docket Number: 6284
• Parties: PHILIP ANDRES ET AL. v. W. H. KRIDLER
• Court: Nebraska Supreme Court

60 N.W. 1014

42 Neb. 784

PHILIP ANDRES ET AL. v. W. H. KRIDLER

No. 6284

Supreme Court of Nebraska

November 20, 1894

MOTION to dismiss proceeding in error on the ground of defect of parties. Motion overruled.

Motion OVERRULED.

John P Breen, for the motion.

Charles W. Haller, contra.

OPINION

RYAN C.

On a trial had of a certain cause pending in the district court of Douglas county judgment was on November 7, 1892, rendered in favor of the plaintiff, W. H. Kridler, against the defendants, John Jenkins, Philip Andres, Thomas Falconer Dennis J. Keleher, James H. Standover, Cornelius M O'Donovan, and J. W. McDonald. On the 27th day of June, 1893, there was filed in this court a transcript of the record and the bill of exceptions in said cause. At the same time there was filed a petition in error, wherein Philip Andres, John Jenkins, Thomas Falconer, J. H. Standover, and J. W. McDonald were the only plaintiffs in error named. On the 14th day of October, 1894, there was filed a motion to dismiss the petition and proceedings in error for the reason that but five of the seven defendants, against whom a joint judgment had been rendered, by petition in error had asked for its reversal. On the 16th day of October, 1894, this motion was submitted. Contemporaneously with this submission plaintiffs in error were given leave to make a showing why the motion to dismiss should not be sustained. On the 20th day of the month last named there was filed a brief in resistance of the motion to dismiss, accompanied by written entries of appearance of Dennis J. Keleher, C. M. O'Donovan, and their written waivers of the fact that a summons in error had not issued or been served on each of them within the time fixed by statute.

In Wolf v. Murphy, 21 Neb. 472, 32 N.W. 303, it was held that all parties in a joint judgment were necessary parties to a petition by one of their number to reverse it and might be made so as plaintiffs or defendants. This rule as to the necessity of the parties was again announced and enforced in Hendrickson v. Sullivan, 28 Neb. 790, 44 N.W. 1135. In Consaul v. Sheldon, 35 Neb. 247, 52 N.W. 1104, it was held that by the submission of a cause on its merits without urging that there was a defect of parties such defect was waived. This ruling was followed in Curten v. Atkinson, 36 Neb. 110, 54 N.W. 131 wherein it was said that "where parties to a proceeding in error submit the controversy upon its merits they will be held to have waived the objection that there is a defect of parties." From these cases the conclusions deducible seem to be that where a joint...