Carr v. Collins

Erazer, J. This was a suit by the appellants against one of the appellees, John O. G. Collins, upon an account. An .answer in "eight paragraphs was filed. The eighth para [307] graph averred that the account sued upon had accrued, not against the defendant alone, but against him and one Darius Collins, who were partners; that goods amounting to $382, mentioned, in a bill of particulars annexed to the paragraph, were sold by the firm of Collins ft Co. to the plaintiffs, “wherefore said Darius is a necessary and proper party to the determination of the suit,” and there was a prayer that the court make him a party defendant to the action and require him to answer thereto. The general denial was one of the paragraphs of the answer. The plaintiffs moved in vain to strike out the eighth paragraph, and the court ordered Darius to be summoned, tbe plaintiffs excepting. ■ At tbe next term, the court overruled a -motion to require the plaintiffs to amend their complaint by making Darius a defendant. He, however, appeared and filed an answer; to what, we are at a loss to know, there being nothing alleged against him. He and John also filed a joint answer. Tbe plaintiff was compelled by the court to take issue upon this latter answer. It is proper to say, that all this 'occurred in the Hancock Common Pleas, the case having been afterwards certified to the Circuit Court. In that court, the -Collins’s obtained judgment for one hundred and sixty-four dollars. T. A. Hendricks, O. B. Hord and G. Y. Atkinson, for appellants. M. Iff. Bay, J. W. Gordon and W. March, for appellees. Ve must vindicate the statute against the suspicion that it gives any countenance to the practice which was adopted by the Common Pleas Court. Ve forbear to discuss the matter, for the reason that it cannot be done with such gravity as the profession have a right to expect in the opinions of this court. The judgment is reversed, with costs, and the cause remanded, with directions to set aside all the proceedings subsequent to and including tbe order making Darius Collins a defendant, and to proceed according to this opinion.