Horine vs Moore, 14 B. Mon 311

Chief Jhstiue Hise delivered the opinion of the court. The legal question presented for decision in this case is this : If one defendant in an action, by equitable proceedings in bis answer to the plaintiff’s petition, states a cause of action or a ground of recovery for money or property, and demands a judgment against a co-defendant, both being served upon the original petition of the plaintiff, is the one defendant entitled to a judgment or decree against the other, without process and service upon the co-defendant?

Held, that in such case no judgment can be rendered or relief granted against a co-defendant, unless after summons issued and duly served. 2. But the defendant, by see. 143 and 158, Code Practice, may bave a decree against tbe plaintiff, upon an answer made cross petition, upon showing a right to relief, which cross petition may be answered by plaintiff, -as in an original suit. Ballinger for plaintiff; Thompson for defendant.

Those provisions of the Code of Practice found in sections 143 and 158, have reference only to the pleadings as between a single plaintiff and defendant, and limits them to the petition and answer alone, except where the answer presents a counter-claim or set-off; but where one defendant seeks a recovery or relief against a co-defendant, in such case the parties may plead as in an independent suit. The answer of the one should assume the character of a cross-petition against the other, to which the other may answer and the former reply, if required or justified by the response.

The well established rule of chancery practice, applicable to such state of case, has not been changed by the code; hence, in this ease, upon the cross-demand stated in the answer of Montfort against Horine, as no summons upon the answer was issued or served, the latter was not before the court upon that answer.

Wherefore, the judgment is reversed, and cause remanded for further proceedings; and as a mistake has been committed also in the judgment to the plaintiff’s prejudice, in directing the payment of only $200 instead of $250, to him, this mistake can be corrected in any future judgment which may be given in the case. Ballinger. & Son for plaintiff; Hardin and Thompson for defendant.