Barnes v. Ennenga

Adams, Oh. J.

i. practice : m&ioinler. I. The appellants assign as error that the court erred in rendering a joint judgment. The appellants in their answer pleaded that there was a misjoinder of causes of action. They evidently acquired the idea that there was a misjoinder from their understanding of the facts. But in determining the question of misjoinder we look to the petition. That avers simply a joint tort; hence there was no misjoinder. The error, if any, of the court did not consist in rendering a joint judgment, but in rendering any judgment at all. A joint tort having been averred it was incumbent upon the plaintiffs to show a joint tort. If they failed, no judgment of any kind should have been rendered. This precise point is not raised either by the appellants’ assignment of error or argument.

• II. The case was tried in the absence of the defendants’ counsel, and without any evidence upon the part of the de *498 fendants being introduced. The defendants moved for a new trial, upon tbe ground that there was a subsisting agreement between their counsel and the counsel for ajipellees that the action should not be tried that week. • The court overruled the motion.

It is not claimed that the agreement was in writing and signed by the attorneys, or made in open court and entered of record. As the agreement is denied, the court did not err in overruling the motion. Code § 213.

Affirmed.