Geohagen v. Thomas , 1868 Ky. LEXIS 268 ( 1868 )

Opinion of the Court by

Judge Robertson:

The appellant’s brother, R. D. Goehagen, as co-contractor, was a necessary party to his counter-claim, and without an allegation that he would not consent to be co-plaintiff, the 36th section of the Code did not allow him to be made co-defendant.

His name was, therfore, properly stricken out as defendant. And the appellant persisting in leaving him out as so-plaintiff in his counter-claim, the court rightly adjudged that, as pleaded, the counter-claim was insufficient.

Moreover, the alleged contract to rebuild being denied by the appellee’s answer, the counter-claim could not have been made available without proof outweighing the answer. There is not only no such proof, but the evidence fortifies the answer and tends to show that the appellee contributed to the rebuilding as far as, according to his answer, he had promised to do.

There is, therefore, no apparent injustice in the judgment on the note, disregarding the counter-claim.

Wherefore, the judgment is affirmed.