
    James A. Frazier v. Alfred Williams et al.
    1. When the judgment sought to be vacated, under section 534 of the code of civil procedure, is taken jointly against all the defendants, and the defense set forth in their petition to vacate is a joint defense, and goes to the whole cause of action, the judgment, if erroneous as to-some of the defendants, is erroneous as to all, and should he vacated as to all, in case the defense be established.
    2. By sections 537 and 538 of the code, it was not intended to deprive the parties of their right to a jury trial, the provision for suspending the judgment of vacation until it is adjudged that there is a valid defense being intended merely for the purpose of preserving the liens and. rights of parties under the judgment; and it is error in the court, after, deciding that there is good ground to vacate, to proceed to try and decide upon the validity of the defense, in a case where the parties have aright to trial by jury, and do not waive that right.
    Motion for leave to file a petition in error from Warren county.
    The plaintiff in error brought an action in the Common Pleas against four persons, to recover'possession of real estate alleged to be owned by him, and wrongfully detained by them. Two of these four defendants were unmarried women, but were married after the commencement of the action, and before judgment taken therein. The plaintiff took judgment by default, without making the husbands of the female defendants parties. The defendants, together with the husbands of the two married women, filed their1 petition, under section 584 of the code, alleging that they had a valid defense to the action; that the plaintiff had no right or estate in the land, and praying to have the judgment vacated. On demurrer to this petition, the court overruled the demurrer as to the married women and their husbands, but sustained it as to the other two original defendants. Without rendering any judgment upon the ruling on demurrer, and without any waiver by either party of the intervention of a jury, the court then proceeded to hear evidence touching the validity of the defense, and, after hearing the same, decided that there was no valid defense to the original action, and adjudged that the petition to vacate be dismissed. On error to the District Court, this judgment of the Common Pleas was reversed; and leave is now asked t'o file a petition here to reverse the judgment of the District Court.
    
      J. 22. Smith, for the motion:
    I. Alfred Williams was more than fourteen years of age when he was served with process in the original action. He was duly served, and was therefore properly before the court. After the service of the summons upon him, in August, 1866, and prior to his arrival at majority, in November, 1867, neither he nor his friends made application for the appointment of a guardian ad litem for him by the court, as they might have done under section 38 of the code. But at the time of the trial, and the rendition of the judgment against him, he was of full age, and had been of full age for more than fourteen months.
    II. We concede that the original judgment against Mrs. Thorpe and Mrs. Bobertson was erroneous, and should have been vacated, if they had a valid defense to the action in which the original judgment had been rendered. A valid defense is essential. Huntington McIntire v. Finch & Co., 3 Ohio St. 445-452.
    The parties were heard upon their petition to vacate, and the answer of the defendants, by the court, and the court found that the plaintiffs — defendants in the original action — had no valid defense to the original action, and by section 588 of the code, the court was precluded from any other course than to refuse to set aside the judgment. •
    —--, contra.
   Welch, J.

We see no error in the judgment of the District Court. The Common Pleas evidently proceeded upon a wrong construction of sections 537 and 538 of the code. S. & C. 1115. The object of those sections, in postponing the judgment to vacate until it shall be adjudged that there is a valid defense to the action, is merely to preserve the liens and priorities of the original judgment, in case a similar judgment should be rendered upon the trial of the cause. It was not the intention to deprive the parties of their right to a jury trial. The meaning of those sections is, that when the court has decided that there is good ground to vacate, the judgment to vacate shall be suspended until after the cause is tried — by a jury, if one is demandable, and not waived, or by the court, if a jury is not demandable, or is waived; and if, on such trial, the defense is established, then judgment of vacation is to be entered; or, if the defense fails, the petition to vacate is to be dismissed, or the judgment affirmed, or such other judgment is entered as the result of the trial indicates.

The overruling of the demurrer as to some of the defendants (petitioners to vacate) was equivalent, in effect, to overruling it as to all, and amounted to a decision by the court that there was good ground to vacate the judgment. The original action charged a joint wrongful possession of the land. The judgment was indivisible, and being erroneous as to part of the defendants, it was of necessity erroneous as to all, and entitled all to a trial on the merits of the common defense set up, and to a general judgment of vacation, in case the defense was established upon the trial

'Motion overruled.

Dat, C. J., McIlvaine, White, and Rex, JJ., concurring.  