
    J. B. Pierce v. Thomas Downey et al.
    
    No. 7819.
    Proceeding in Error — Necessary Parties. During the pendency of an action in ejectment, the defendants conveyed their interest to C., subject to a mortgage to P. After judgment against the defendants on a second trial a new trial was granted. On application of O. and P., the court then made them parties defendant and gave them time to answer. Held, That in a proceeding in error to reverse the order of the court granting a new trial O. and P. are necessary parties.
    
      Error from Pottaivatomie District Court.
    
    Ejectment by J. B. Pierce against Thomas Downey and others. A. H. Clark and A. B. Pomeroy were made defendants. Judgment for plaintiff. Prom an order granting defendants a new trial plaintiff brings error. The opinion states the case.
    
      Codding & Challis, for plaintiff in error.
    
      Play den & IPayden, for defendants in error.
   The opinion of the court was delivered by

Martin, C. J.

: On January 9, 1891, on a second trial in ejectment, judgment was rendered in favor of the plaintiff for lot 15 of block 15, in Butler City. A motion for a new trial was filed. January 12,1891, and a subsequent motion was filed two days later including some causes not embraced in the former. On January 17, upon hearing, a new trial was granted, and the defendants, being aggrieved by said order, were given time to make a case for the supreme court. It appears from the record that, during the pendency of the action, and on November 26, 1890, the defendants, Downey and Cox, executed a deed to A. H. Clark for tire premises in controversy, subject to a mortgage to A. B. Pomeroy for $2,000. After the order was made granting a new trial, on application of A. H. Clark and A. B. Pomeroy, it was ordered by the court that they be made parties defendant to the action, and that they be allowed to answer within 20 days, to which order of the court the plaintiff excepted. The defendants, Downey and Cox, now move to dismiss, because Clark and Pomeroy are not made parties to this proceeding in error. It was proper for the district court to allow' Clark and Pomeroy to be made parties defendant. (Code Civ. Proc. §§40, 42.) They are interested in sustaining the order of the court granting a new trial, and, having been made parties in the court below, they are necessary parties here. (Bassett v. Woodward, 13 Kan. 341; Richardson v. McKim, 20 id. 346 ; Paving Co. v. Botsford, 50 id. 331, 332, and cases cited; Norton v. Wood, 55 id. 559, 40 Pac. Rep. 911, and cases cited.)

The petition in error will therefore be dismissed.

All the Justices concurring.  