
    Town of Lyndon v. Nathaniel Cook.
    Where, in an action of tort against several defendants, the plaintiff, on trial, voluntarily entered judgment in favor of one of the defendants and then called that defendant as a witness, and he testified, and a-verdict was returned in favor of the other defendants, and thereupon the plaintiff entered a review of the case as to all the defendants, and, at the next term, the defendant, in whose favor judgment was voluntarily entered, moved to set aside the review as to himself, it was held, that there was no error in the county court, in overruling the motion.
    In this case, which was originally commenced against Cook and several other defendants, Cook filed a motion in the county court, alleging that at the preceding term of the court the plaintiffs voluntarily directed judgment to be entered in his favor and then called him as a witness against the other defendants, that he testified, and a verdict was rendered in favor of the other defendants, and thaf the plaintiffs then entered a review of the case as to all the defendants,— and moving that the court should order his name stricken from the docket and allow him his just costs.
    The county court, — Redfield, J., presiding, — overruled the motion, and the trial of the case proceeded, and a verdict was rendered in favor of the other defendants, and against Cook. Exceptions by Cook. '
    
      C. Davis for defendant'.
    
      T. Bartlett for plaintiffs.
   The opinion of the court was delivered by

Royce, J.

The case does not find, whether the facts set forth in the motion were true; and hence we find some difficulty in treating them as facts. But, regarding them as such, we do not perceive that the decision of the county court, in denying the motion, can be ¡pronounced .erroneous. Had the question been brought here, whether this defendant was legally required to testify for the plaintiffs on ¡the first trial, upon a separate judgment being entered for him, without any waiver, by the plaintiffs, of their right to review as to him, it would doubtless have received a different consideration. But •without such waiver, or something on the record, showing that judgment to have been final, the cause was equally reyiewable against this defendant, as against .the others.

Assuming, then, that the motion truly sets forth the proceedings at the first trial, we can only say, it presents a case of irregularity, and perhaps injustice, in regard to this defendant; — but the irregularity, being previous to the review, and not excepted to.at the time, is beyond the correction of this court.-

Judgment of county court affirmed.  