
    Jones et al. v. Jones et al.
    
    (Opinion filed May 31, 1905.)
    On rehearing.
    Affirmed.
    For former opinion, see 17 S. D 256, 96 N. W. 88.
    
      M. H. Keith and Joe Kirby, for appellants.
    
      Davis, Lyon & Oates, for respondents.
   Haney, J.

The order of the lower court granting a new trial in this action was heretofore affirmed, • and the cause remanded. Jones v. Jones, 17 S. D. 256, 96 N. W. 88. Subsequently, upon the application of the plaintiffs, it being then made to appear that the defendant Wilson S. Jones had died testate after the appeal was taken and before the decision of this court was rendered, the remittitur and record were recalled; the decision and judgment of this court were vacated; the action continued against H. W. Subera, as executor of the last will of the decedent, and Isaac S Jones, the other defendant; a rehearing was granted; and the cause was again assigned for argument.

For the reasons assigned in our former decision, which is hereby referred to, and made a part hereof, the order of the circuit court granting a new trial must be affirmed. After the rehearing was granted, the plaintiffs, upon due notice, applied for an order severing the action, and allowing them to proceed against each of the defendants separately. Without determining whether a severance is necessary, or what, if any, rights the plaintiffs may enforce against either defendant separately, it is believed that no substantial injury would result from granting the plaintiffs’ application. Therefore the order appealed from is affirmed, and the action remanded, with directions to the circuit court to grant the plaintiffs leave to serve and file new complaints against each of the defendants upon such terms as it shall deem just and equitable.  