Shaffer v. Burns

BY THE COURT

Error is prosecuted by the defendant, Shaffer, to the action of the trial court on the demurrer. We are of opinion that no prejudicial error resulted to Shaffer by the action of the trial court. The first ground of the demurrer was well taken. The pleading was a cross petition which may be treated as a petition under the statute, and it attempted to join in an action instituted by Alter and Burns, a partnership, against Shaffer, individually, a cause of action arising by reason of another partnership in which Alter, Burns and Shaffer, together with another individual, Kelly, constituted a separate and distinct organization.

We believe this to be a misjoinder of parties covered by Sub-Division 5 of §11309 GC. It may also be observed that defendant Shaffer answered and went to trial. No service was had upon his cross petition. There was also an attempt to join an action for accounting between a partnership not brought into the original suit and covering different subject matter, with the original action for money only.

The record does not disclose that error has intervened to the prejudice of the plaintiff in error. Judgment of the trial court will therefore be affirmed.

ALLREAD, PJ, KUNKLE and HORNBECK, . JJ, concur.