
    PLEADING — ERROR.
    [Warren Circuit Court,
    October Term, 1896.]
    Swing, Smith and Cox, JJ.
    Adam G. Collins v. Francis Mansfield et al.
    1. Question of Misjoinder of Parties Pdaintiff may be Raised in the Answer.
    When, on the face of a petition in error there appears to be a misjoinder of parties plaintiff, which could only be taken advantage of by a special demurrer, and such a demurrer is not filed, the defendant waives the objection under the provisions of section 6064, Revised Statutes, but he may properly raise the question by answer.
    2. Joinder of Plaintiffs in an Action to Foreclose and Reforma Mortgage.
    Where several parties plaintiff file a petition asking for the foreclosure of a mortgage made by defendant, to secure the payment of notes given by him to them severally, and also asking for a reformation of the mortgage on the ground that the land intended to be mortgaged was not correctly described therein: Held, that as the petition set up a claim for the reformation of the mortgage in which the plaintiffs were directly interested therefore, they were entitled to join as plaintiffs and there was no misjoinder of parties plaintiff.
    3. The Right or Cause of a Proceeding in Error Accrues When
    The right or cause of a proceeding in error accrues at the time of the rendition of the judgment or making of the final order, and under section 6723, Revised Statutes, such proceedings must be commenced within six months from that time. If commenced thereafter, the court acquires no jurisdiction of the cause and the petition should be dismissed.
    4. Overruling Motion for New Trial is not a Final Order.
    The overruling of a motion for a new trial is not a final order to which error can be prosecuted'
    Error to the Court of Common Pleas of Warren county.
   Smith, J.

Owing to the fact that the original pleadings filed in the case, the judgment which it is in this case sought to review, a re not before us, it is difficult to ascertain the exact facts; but we have enough data to enable us to state them substantially, aided by the statements of counsel. The original petition was one filed by Francis W. Mansfield and Margaret Mansfield against Mr. Collins, to foreclose a mortgage made by him to them to secure the payment of notes given by him to them severally, the notes having been given for the purchase money of the real estate conveyed by them to Collins. An answer was filed by Collins setting up various defenses, and a trial was had, and judgment was rendered for thez plaintiffs. Afterwards the judgment was set aside by the court, and on the 13th day of May, 1893, an amended petition was filed by the plaintiffs. By it the plaintiffs first sought to correct and reform the mortgage which had been sued upon, on the ground that .by the mistake of the parties the land intended to be mortgaged thereby was not correctly described therein, and seeking to have it corrected in this respect, and then prayed for the sale of the land for the purpose of paying the debts due to the plaintiffs severally. No demurrer to this amended petition, on the ground that there was a misjoinder of parties plaintiff or other grounds was filed by the defendant. But on August 24, 1893, he, by leave of court, filed an answer and cross-petition to this amended petition of plaintiffs, setting up various defenses thereto, and asserting a misjoinder against them, and plaintiffs filed a reply thereto. Afterwards, on April 30,1894, the defendant, by leave, filed an amendment to his answer, asserting that there was a misjoinder of parties plaintiff, and to this a reply was filed. On the issues raised the case was again tried, and on May 12, 1894, the court of common pleas, by its decree, reformed the mortgage as prayed for, and found the amount due to the plaintiffs severally, and ordered the real estate described in the mortgage as reformed to be sold for the payment of the amount so found to be due to the plaintiffs severally. To this judgment and order the defendant excepted, and undertook to have a bill of exceptions allowed by the court, but the same was not signed, allowed or filed in time, and therefore cannot be considered as a bill of exceptions in this case. But on the 10th day of November, 1894, the petition in error was filed in this court, alleging that there was error in the judgment of May 12, 1894, in this: that the court erred in not holding that there was a misjoinder of parties plaintiff, and in rendering a judgment thereon in their favor against the defendant; and further, that the court erred in not receiving certain evidence offered by the plaintiffs. But inasmuch as these last named errors are only shown, if at all, by the bill of exceptions, which was not allowed in time, these assignments of error cannot be considered by us. It is urged by counsel for defendants in error that we are not at liberty to consider the question whether there was a misjoinder in this case, for the reason that even if there was, as it appeared on the face of the amended petition, that it could only be taken advantage of by a special demurrer, and as such demurrer was not filed, defendant thereby waived the objection under the provisions of section 5064, Revised Statute, and could not afterwards properly raise thé question by answer. This, it seems to us, is an altogether too strict construction of the statute, and directly opposed to the doctrine laid down in the case of Masters v. Freeman, 17 O. S., 323. We think, then, that the point is properly raised in the pleadings themselves, and the question for decision is, whether the plaintiffs could properly join in the amended petition. If it was simply an action to foreclose the mortgage for the separate debts of the two plaintiffs, there seems to be some conflict in the authorities. But we understand that the decision of the supreme court of Indiana holds that it may be done. See 84 Ind., 301, 3 Blackford, 403. And the text writers seem to take the same view. See Pomeroy’s Remedies and Remedial Rights, section 225, Bliss on Code Pleadings, section 100, etc., and Jones on Mortgages, section 1367.

A. G. Collins, for Plaintiff in Error.

Morrill cf Jordan, for Defendants in Error.

But as the amended petition sets up a claim for the reformation of the mortgage, and both plaintiffs were directly interested in having this done, we think they were entitled to join as plaintiff as to this, and there was no misjoinder of plaintiffs.

After the judgment of May 12, 1894, a motion for a new trial was duly filed by the defendant, stating as grounds those set out in the original petition in error, and the additional reason that the judgment was against the weight of the evidence. This motion was not disposed of when the original petition in error was filed, nor was it done until April 7,1896. This was nearly two years after the rendition of the decree complained of. Defendant excepted to the overruling of the motion, and in due time had a bill of exceptions allowed containing all of the evidence with the rulings of the court as to the admission of evidence, and on August 20, 1896, filed what is called a supplemental petition in error, asking a reversal of the judgment of May 12, 1894, for the reasons assigned therein, for error in overruling the motion for a new trial and for receiving incompetent evidence at the trial.

We think, then, that plaintiffs in error can take nothing under this petition in error. It is clearly and explicitly held in the case of Young v. Schallenberger, 53 O. S., 291, that the right or cause of the proceeding in error accrues at the time of the rendition oí the judgment or making of the final order, and under section 6723, Revised Statutes, such proceedings must be commenced within six months from that time. If commenced thereafter, the court acquires no jurisdiction of the cause, and the petition should be dismissed, and that the overruling of a motion for a new trial is not a final order to which error can be prosecuted. The fact that the petition in error was filed two years before and within six months after the rendition of the judgment complained of, one of the grounds whiqh, raised by the record, we have held not to be well taken, and the others of which were not presented (as was necessary) by a bill of exceptions, will not avail to enable the plaintiff in error, when a motion for a new trial has been overruled more than six months after the rendition of the judgment complained of, in effect to file a new petition in error, and raise questions settled by the judgment rendered more than six months before the filing of the supplemental petition in error. This supplemental petition and bill of exceptions will therefore be stricken from the docket, and the judgment of the common pleás affirmed.  