
    No. 251
    ALDRICH v. MeCUNE
    Ohio Appeals, 4th Dist., Franklin County
    No. 1122.
    Decided Nov. 15, 1923
    465. ERROR — A defect in parties in error proceeding may be cured at any time.
    1235. VERDICT — Where a jury is waived judgment of court has same effect as verdict, and cannot be reversed unless contrary to evidence.
    Attorneys — W. H. Aldrich and Frank Pig-mias, for Aldrich; Wilbur E. Benoy, for Mc-Cune, all of Columbus.
   ALLREAD, J.

Epitomized Opinion

Published Only in Ohio Law Abstract

McCune brought an action against one Aid-rich and one Hill as joint contractors. A judgment was rendered against both defendants. Aldrich prosecuted error, but Hill was not made a party to the error proceedings. A demurrer was sustained to .the second and third defenses of the answer of Aldrich. The plaintiff in error claimed that the trial court erred in this respect and, also that the judgment was against the weight of evidence. In sustaining the judgment of the lower court, the Court of Appeals held:

1. Although one of the joint defendants was not made a party in the error proceeding, this defect could still be cured, and therefore the error proceeding should be heard on its merits.

2. The trial court committed no error in sustaining the demurrer.

3. As a jury was waived the judgment of the trial court had the same force and effect as a verdict, and a reviewing court is not authorized to reverse the same, unless such judgment is manifestly contrary to the weight of the evidence, which does not appear in this case.  