Parsons v. Suares

Martin J., delivered the opinion of the court. The plaintiffs allege that they sent a draft to the defendant, with directions to apply the proceeds thereof in the purchase of a tract of land. That the defendant received the money but purchased no land, and refuses to return the funds now in his hands. ■ The defendant admits the receipt of the draft from Crevillier, one of the plaintiffs, but avers that he was unable to purchase the land as requested ; and that he has retained a little upwards of four hundred dollars for claims he has bad to pay for this plaintiff, and admits a balance of one thousand one hundred and fifty dollars yet in his hands in' her favor, for which he prays judgment in her behalf, against himself, without costs, as no amicable demand was made before suit. Judgment may • !K' t:l,ccn .™1 xessiou oí the de-fondant, without a trial, for the sum he admits ¡°mc^e a"d hfs willing to pay, and the rights oí the piaintiffswiii to the^emaiLer ofj which is disputed. and the defend-‘a certain ils^dts0’ ?ne of then}, cmifSSon°n can to whom the de-ted'to be due™ Judgment was given according to the prayer of the defendant, reserving to the plaintiffs their rights to the balance of their claim, which was disputed. The defendant has appealed to this court. , • The counsel-for the appellant assigned as error on the face of the record : 1. That judgment was given ex parte, and without the , , & f > cause being faxed lor trial. 2. That the answer does not admit any debt or balance due to the plaintiffs, but only in favor of one of them. a mi „ , . , ■ . ó. lfaat part or a cause cannot be tried at one time, or on one day, and the remainder at another time. No trial was had and none required for the balance , , ¶ 1 admitted by the defendant, and for which alone judgment was rendered. It would, therefore, have been useless to have set down the cause for trial. , ■ Judgment was erroneously given in favor of both There had been no trial as yet in the case, and the confession of the defendant was made in favor of but one of the plaintiffs. If any issue be tried there will be but one plaintiff to join in the trial. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed; and that the plaintiff, Crevillier, recover from the defendant the sum of one thousand one hundred and fifty dollars; reserving to the plaintiffs their rights as - to the remainder of the claim, they paying the costs of the appeal.