City of Dublin v. Prim , 43 S.W.2d 317 ( 1931 )

On Rehearing.

In its motion for rehearing the appellant complains that this court, in its original opinion, failed to pass upon its first and second propositions, complaining of an error of the trial court in overruling its plea in abatement raising the question of misjoinder of parties and causes of action. In response to this motion we have re-examined the record and now conclude that said propositions should be overruled.

By an inspection of the transcript we do not find any pleadings evidencing who brought the city of Dublin into the lawsuit. The transcript does not contain any of the plaintiff’s pleadings except the “first supplemental petition,” and neither does it contain the original answer and cross-action of the Prims. It is true, the plea in abatement states that the c-ity was brought in by the Prims, but that plea was overruled, and on the showing indicated we do not believe that this court can judicially know from this record how or by whom the appellant was called into the suit.

Further, we find that the cross-action by the Prims had for one of its objects the cancellation of the paving certificates upon which the plaintiff’s cause of action was based. Certainly both the city and the plaintiff were interested in this issue, and we do not believe that the bringing in of the city to try out the same would amount to a misjoin-der of parties or causes.

The motion is overruled.