
    Benson’s Administrator v. Stein.
    1. In an action for an account and the recovery of money, where the defendant admits his indebtedness to the plaintiff in a certain sum, but. sets up that a judgment creditor of the plaintifLhas a suit in aid of execution then pending against the plaintiff and defendant, in which such indebtedness is sought to be subjected to the payment of his judgment: Meld, that it is error to render judgment for the amount so admitted to-be due, until such judgment creditor is made a party, or his right in the-premises is determined.
    2. But where a judgment is so erroneously rendered, the error is cured. whenever it is made to appear of record in the case that such action in aid of execution has been dismissed by the party.
    3. Where, in an action to compe.l the statement of an unsettled account between the joint owners of a steamboat, with a prayer for a judgment for the amount that may be found due to the plaintiff, the defendant answers that the amount due the plaintiff has been ascertained and fixed. • by an award upon submission to a third person, and the plaintiff replies, admitting the submission and award, and asks judgment thereon, there is no such departure in pleading as will vitiate a judgment for the amount admitted to be due by the answer. The judgment in such case rests on the petition and answer, and not on the reply.
    
      4. Where a defendant admits the amount of his indebtedness to the plaintiff and pleads a set-off, and issue is joined on the set-off, a judgment rendered upon the pleadings, on the motion of the plaintiff, for the amount admitted to be due, less the amount of the set-off, is not erroneous. Section 376 civil code, as amended March 13, 1872 (69 Ohio-L. 44).
    
    
      Motion for leave to file a petition in error to the Superior Court of Cincinnati.
    The original action was commenced by James Good, in tbe Superior Court of Cincinnati, against Albert Stein, John G. Benson, and John Good (tbe latter of whom was not served), for tbe settlement of an account between them as joint owners of certain steamboats and barges. Benson filed an answer and cross-petition, admitting the allegations in tbe petition as to tbe joint interest of tbe parties in tbe vessels and tbe profits thereof, and charging that Stein bad converted tbe earnings and profits of tbe boats to bis own use, and bad failed and refused to account therefor, and praying that Stein might be compelled to account, and for a judgment for tbe amount that might be found due to him from Stein. ;
    Stein filed an answer, admitting generally tbe allegations of tbe petition and cross-petition, but alleged that tbe matters of difference between the parties bad been submitted to tbe arbitrament of one Robert C. Rogers, who bad awarded, among other things in favor of Benson, a certain sum of money, which, subject to certain set-offs, was tbe amounf of bis indebtedness to Benson. ;
    Stein further alleged in bis answer that one William Q, Hodgson, a judgment creditor of Benson, had commenced an action in aid of execution against Benson and himself, for tbe purpose of subjecting the amount of such indebted* ness to tbe satisfaction of bis j udgment, and that such action was still pending. ,
    
    At this stage in tbe action Benson died, and Powell; Crosby, his administrator, filed a reply to Stein’s answer, admitting the alleged arbitration and award, and also admitting the pendency of tbe action by Hodgson against his intestate and Stein, but denying tbe set-off pleaded by Stein, and also denying that Hodgson had acquired any lien upon tbe indebtedness of Stein to bis intestate, and praying foi? a judgment for tbe amount of tbe award made in favor of* Benson by Rogers. v
    
      Afterward, in open court, at special term, Benson’s administrator moved for a judgment in Ms favor for the amount of said award, less the amount of the set-offs claimed by Stein. This motion was insisted by Stein, who demanded a trial. Thereupon, upon the pleadings, the court rendered judgment in favor of the administrator against Stein, for the amount of the award, less the set-offs claimed by him ; and Stein excepted.
    This judgment having been affirmed in general term, a petition in error was prosecuted in this court by Stein, and the judgment of affirmance was reversed; but, inasmuch as it was then suggested to this court that, subsequent to the judgment of affirmance, Hodgson had been made a party to the action in the court below with leave to answer, this court declined to reverse the judgment at special term, and remanded the cause to the general term for such judgment as might be proper in view of the fact that Hodgson had been made a party, etc.
    The cause being thus again pending in general term, it was made to appear by the answer of Hodgson, then of record, that his proceeding against Benson and Stein, in aid'of execution, had been dismissed, and that he claimed no interest in the indebtedness of Stein to Benson, except as a general creditor; the court proceeded to consider other supposed matters of error in the record, and reversed the judgment rendered at special term, and remanded the cause to special term for trial.
    Benson’s administrator now seeks to reverse the judgment at general term reversing the judgment rendered at special term.
    
      Butterworth $ Vogeler, and Powell Crosby, for the motion.
    
      Iloadly, Johnston Sf Colston, contra.
   McIlvaine, J.

"When this cause was before the court on the petition in error of Albert Stein, the judgment rendered in general term, affirming the judgment at special term, was reversed solely on the ground that the court at special term erred in rendering judgment in favor of Benson’s administrator and against Stein, without either making Hodgson a party to the action, or determining the right of Hodgson to subject the indebtedness of Stein to Benson tc the satisfaction of his judgment. By that judgment Stein was ' exposed to the risk of being compelled to pay his indebtedness to Benson’s administrator, and afterward to Hodgson in his action in aid of execution. It is true, the court by its judgment at special term ordered the money to. be paid into court to abide its further order, and reserved alt other issues in the case for future determination ; but this court was of opinion that this order and reservation did not afford to Stein all the security to which he was entitled. Hodgson’s proceeding in aid of execution having been commenced before the original action, he was not bound to appear in the original action to assert his right; and It seemed to us that Benson’s administrator was not entitled to judgment against Stein until Hodgson’s right was determined, or at least, until he was made a party to the action.

It having been suggested to this court, however, that Hodgson had become a party to the original action, and would, therefore, be bound by the judgment., and order of the court in regard to the disposal of the money, the judgment of affirmance was reversed, and the cause remanded for such judgment as might be proper in view7 of the then state of the record.

The case being thus again- before the court below, In. general term, and it having been made to appear of record that Hodgson had no interest in the subject-matter of the suit, by reason of the dismissal of his action in aid of execution, the proper judgment, under the then state of the record, would have been an affirmance of the judgment at special term. The alleged claim of Hodgson having been determined against him, the premature rendition of the judgment ceased to be prejudicial to Stein, inasmuch, as -between him and Benson’s administrator, the latter, upon the pleadings, was entitled to the judgment rendered in his favor.

■■ ■'We'are informed, however, in argument, that the judgment of reversal was based on the ground of a supposed! departure in pleading, that is to say, that the judgment was ■ rendered in favor of Benson’s administrator on an award, as prayed for in the reply, whereas, the cause of action as stated in the cross-petition, arose on an unsettled account.

While no such ground was alleged in the petition in error, we admit the right of a reveiwing court, to reverse on grounds not specially assigned for error, if, in its discretion,. it chooses to do so; yet we do not find the error now relied on iu the record.

After deducting the set-offs pleaded- in the answer from the amount admitted to be owing on the award, as was-done below, the administrator would have been entitled to-the judgment rendered in his favor, if no reply had been, filed.. The prayer for judgment in the cross-petition was-sufficient to support such judgment, and we must hold that, the judgment was rendered on the prayer of the cross-petition, and not on the prayer of the reply.

It is true that judgment was demanded in the cross-petition, on the statement of an unsettled account of earnings and profits between the joint owners of steamboats- and barges; but it is equally true, that the submission and awai’d set up in the answer was not, and was not intended as a bar or defense to the action, but only as a fact fixing and limiting the amount of recovery. The money due-on the award was the same indebtedness which was claimed in the cross-petition to be due on a unsettled account, to-wit, Benson’s share of the earnings and profits of the vessels..

,. Indeed, as a matter of pleading, the reply was of no significance except in so far as it put in issue the new matter-alleged in the answer by way of defense.

. ,-It'is urged, in favor of sustaining the judgment of reversal, that the admission of indebtedness contained in the answer was made under a mistake; that the submission of the .differences between the parties to the arbitrament of Rogers had been withdrawn! by Good and Benson before-the award was rendered. This suggestion is not entitled to any controlling weight. If judgments could be affected by allegations of mistake in pleading the facts, more evil than good would result. A party has no right to comrlainif he be held to be bound, after judgment by an admission-solemnly made in his pleadings.

Motion granted. Judgment at general term reversed,, and that at special term affirmed.  