
    E. I. Bullock v. S. W. Rennick, Admr.
    Pleading — Cross-action.
    Where an answer, although, made a cross-petition, was only in aid of the original action, and does not ask for a judgment, such pleading does not amount to a cross-action.
    
      APPEAL FROM HICKMAN CIRCUIT COURT.
    March 18, 1874.
    
      Bullock, for appellant.
    
    -, for appellee.
    
   Opinion by

Judge Pryor:

The motion to dismiss what is called the cross-petition of Ren-nick, Admr., should have been sustained' in the event the original action was dismissed. The sureties who' instituted the original action are not prosecuting this claim., and it is to be inferred from the record and the character of the judgment rendered, that this action is no longer pending, although there is no order to be ’ seen dismissing it. The original action being for the relief of the sureties of Rennick, Bullock, the appellant, was brought into the case as garnishee only, upon tire allegation that he was indebted to Rennick.

The answer of Bullock denies this indebtedness, and upon this pleading, with the original action gone, or no judgment in favor of the sureties, a judgment is rendered in favor of Rennick, Admr., against Bullock, for a large sum of money. The answer of Rennick, although it is made a cross-petition against the appellant, was only in aid of the original action, and does not seek for or ask a judgment against Bullock in favor’ of Rennick. Such a pleading was no cross-action, if such could be prosecuted, for the reason that it asks no judgment and does not even pretend to specify any amount that the sureties should recover by reason of the-statements contained in it. If, then, the original action is out of court, the whole case must go with it; but if it is still pending, the case, if the sureties desire it, should1 go to the commissioner for a settlement of the accounts between the parties. These claims, many of them, are controverted, and payments made on others, reducing the claim of the sureties, if they have any, by reason of their garnishee below, the amount of the judgment. If the original proceedings have been dismissed, the appellee, Rennick, Admr., must resort to his original action. Judgment reversed and cause remanded for further proceedings consistent with this opinion.

Judge Lindsay not sitting.  