Yates v. Vail

OPINION OF THE COURT BOTTS, J. Suit by defendant in error, Yail, to foreclose.a mortgage made by the plaintiffs in error. The latter answered and cross-complained against Yail and the other two defendants in error who were brought in as new parties by the cross-complaint. Defendants in error filed their separate “replies” to the cross-complaint. Plaintiffs in error, Yates and wife, filed their motion to strike certain parts of the replies, and also a “motion” objecting to the case going to trial until they had replied to the new matter of the “replies” of the defendants in error, claiming that the case was not at issue until they should have done so or or suffered 20 days’ time to elapse without pleading, further, and demanding a jury trial, first of the issues made by the complaint and answer, and, second, of the issues made by the cross-complaint and “replies.” Judgment of foreclosure, and the case is here on error. By their brief the plaintiffs in error make three points: (1) That the court erred in overruling the motion to strike; (2) that the case was not at issue when tried; and (3) that a jury trial should have been granted. After the brief of plaintiffs in error had been filed, on motion of defendants in error, the bill of exceptions, or more properly the authenticated stenographer’s transcript, was stricken. Then, after answer and reply briefs had been filed, the plaintiffs in error, Yates and wife, stipulated with defendants in error that the writ of error shall be dismissed. This leaves the case pending here as between the plaintiffs in error, Fabielli and wife, and the defendants in error. Passing over the contention of the latter that the points made cannot be reviewed in the absence of the stenographer’s transcript, an examination of the record proper discloses that the motions and objections by which the questions were raised, if they were so raised, were made only in behalf of the plaintiffs in error who have stipulated a dismissal. Since Fabielli and wife did not join with their coparties in the motions and objections, they derive no benefit, therefrom, and they have nothing before us for review. Knott v. Dubuque & S .C. R. Co., 84 Iowa 462, 51 N. W. 57; Nickerson v. Canton Marble Co., 35 App. Div. 111, 54 N. Y. Supp. 705. It follows that the writ of error should be dismissed in so far as the plaintiffs in error, Yates and wife, are concerned, and, as to the other plaintiffs in error, the judgment of the lower court should be affirmed, and it is so ordered. PARKER, C. J., and BRATTON, J., concur.