
    KREBS v COVINGTON BUILDING & LOAN ASSN
    Ohio Appeals, 2nd Dist, Miami Co
    No 329.
    Decided May 23, 1934
    Barger & Orendorf, Dayton, for plaintiff in error.
    Shipman & Shipman, Troy, for defendant in error.
   OPINION

By BARNES, J.

Under the law, the ultimate liability of these defendants would be inverse to the order in which they received their respective deeds of conveyance. Plaintiff in error, Krebs, was probably the fourth in • this order.

The -rights of defendants who preceded him as grantors of .real estate might be materially affected if the judgment against Krebs should be reversed. For that reason we think that the defendants occupying this position are at least necessary parties to this proceeding in error.

As to the necessity of other defendants . being necessary parties, there is considerable doubt, but an .abundance of caution would suggest that all parties to the action below be included as parties in this court.

Sec 11256 GC is pertinent to the question. We cite the following authorities in support of our conclusion:

Work v Christie, 9 C.C., 439;

Columbia Graphaphone Company v Slawson, 100 Oh St, 473;

Jones v Marsh, 30 Oh St, 20;

Ervin v Mathers, 18 C.C., 199;

Tod v Stambaugh, 37 Oh St, 469;

Vcach v Kerr, 41 Oh St, 179;

Fiedeldey v Discrens, 26 Oh St, 312;

Young v Meyers, Jr., Exr., et, 124 Oh St 448;

Roberts v Roberts, 61 Oh St, 96.

Council for plaintiff in error on page 4 of their reply brief, ask for leave to amend and bring in other parties in the event this court should sustain the motion to dismiss.

To follow this request literally would create a rather anamolous situation. If the petition in error is dismissed, it would hardly be consistent in the same entry to thereafter grant leave.to amend.

In order to preserve the rights of plaintiff in error, we will withhold final determination on the motion for ten days and in the interim counsel may file a formal application to make new parties defendant and, of course, serve copy on opposite counsel. If counsel for plaintiff in' error interposes no objections to the motion to make new parties, entry may be presented to this court duly approved, so providing. If counsel for defendant in error object to amendment at this time, briefs may be presented at an early date.

The file’ will be held pending future action.

HORNBECK, PJ, concurs.  