
    W. P. Cooke et al. v. John Altvater.
    The defendants, on a ease coming on for second trial, one of whom alone had entered demand therefor, claimed that such trial should be had as to all of them, which, being allowed by the court, resulted in the verdict and judgment complained of. Held: That having claimed and been allowed the advantages of such trial, the defendants were precluded from objecting to the regularity of the steps taken to obtain it.
    Error to the district court of Cuyahoga county.
    Altvater brought an action in the common pleas against Cooke, Dennison, Lowman, Warden and Stafford stating, in his petition that on Dec. 12, 1866, one Black was indebted to him on a promissory note in a specified sum, and a further sum specified for work and labor; that, at the time mentioned, Black owned a stock of boots and shoes in a store kept by him in Cleveland, and was also indebted to the defendants in a large amount; that the defendants promised Black and the plaintiff that if the former would sell and transfer the stock of boots and shoes to the defendants toward paying his indebtedness to them, they would pay the plaintiff his claims against Black; that the sale and transfer was accordingly made, but that the defendants, though often requested, have failed and refused to pay the plaintiff’s claims, wherefore judgment is asked against the defendants for their amount and interest.
    The defendants joined in an answer (1) denying, for want of information, the alleged indebtedness of Black to the plaintiff; and also denying that they made any agreement to pay the plaintiff any thing on account of his claims against Black, as stated in the petition; and (2) that they received the stock of boots and shoes of Black, and, in pursuance of an express agreement with him, applied the same on debts due from him to them, or one or more of them, in part satisfaction thereof, leaving a balance unpaid. The defendants further set up the statute of frauds to the claim that they agreed to pay a debt of Black to the plaintiff; and aver that no consideration whatever was ever received by them or either of them, or ever existed, for any such agreement.
    The reply denies the averment of the answer that the defendants had no information as to the amount Black owed the plaintiff, alleging that thej'- had full knowledge, &c.
    The issues were tried to a jury and the verdict was against Cooke for $262.76, and against Cooke, Dennison, Lowman, Warden and Stafford for $20. Judgment was entered accordingly.
    Afterward Cooke demanded and was allowed a second trial, and filed an undertaking therefor, reciting that, in the action mentioned, wherein Altvater was plaintiff, and Cooke, Dennison, Lowman, Warden and Stafford were defendants, judgment was rendered in favor of the plaintiff and against Cooke for $262.76 and costs; and that the court had allowed Cooke a second trial on his entering into an undertaking) &c. Therefore Cooke and his two sureties in the undertaking bind themselves to Alvater, in the sum of $525.52, that Cooke shall abide and perform the order and judgment of the court, and shall pay all moneys, costs and damages which may be required of or awarded against him consequent upon such second trial.
    At the next term of the common pleas “ the parties, by their attorneys, come, and are at issue,” and the cause was tried to a jury, “and was a second trial under the statute allowing such.” * * * “ The defendants claimed, and • the court decided, that, although Cooke alone demanded a second trial at the former term, this carried all the defendants along, and a second trial was to be had as to all, and it was so had at this term,” as shown by the bill of exceptions, which contains, also, the testimony in the case. The verdict was for $285 in favor of the plaintiff and against all the defendants.
    The defendants moved to set aside the verdict and for a new trial, on the grounds that the verdict was against the law, the charge of the court, and the evidence. This motion was overruled and exception taken, and judgment entered on the verdict.
    To reverse this judgment all the defendants filed their petition in error in the district court, assigning for error, among other things, that the common pleas erred in deciding that the defendants, other than Cooke, were parties to the second trial, and in rendering judgment for the plaintiff when it should have been for the defendants, or, at any rate, for all of them but Cooke.
    The district court affirmed the judgment of the common pleas, and the present petition in error is to reverse the judgment of affirmance.
    Prentiss, Baldwin & Ford for plaintiffs in error :
    1. There was no issue of fact the parties had a right to have tried, as to the several liability of Cooke in addition to his joint liability with the other four defendants, and there was no ground for the allowance of a second trial.
    2. Cooke alone demanded and was allowed a second trial, and his undertaking relates to the judgment against him alone. The common pleas erred in the scope and effect given to the second trial. It should have been confined to Altvater and Cooke, if any second trial could be had under the circumstances. Sprague v. Childs, 16 Ohio St. 107; Shamokin Bank v. Street, 16 Ohio St. 1; Secrest v. Barber, 17 Ohio St. 425. Consent could not confer jurisdiction, nor the claim of counsel, whether right or wrong, and whether correctly understood or otherwise.
    3. The verdict was against the weight of the evidence.
    
      John W. Heisley for defendant in error:
    The answer was joint — the same defence as to all the defendants. The second trial went forward as to all of them. 
      Sprague v. Childs, 16 Ohio St. 107; Ewers v. Rutledge et al., 4 Ohio St. 210.
    The verdict was not against the evidence.
   White, J.

The court had jurisdiction of the case and of all the parties upon the second trial. The record shows that the defendants claimed a second trial should be had as to all of them, although Cooke alone entered demand therefor. The court sustained their claim, and a second trial was had accordingly, which resulted in the verdict and judgment complained of. Having claimed and been allowed the advantages, of a second trial, the defendants cannot object to the regularity of the steps taken to obtain it.

As to the claim that the verdict is against the evidence, it is sufficient to say the case is not such as to justify this court in interfering with the action of the courts below.

Judgment affirmed.

Welch, C. J., and Day, McIlvaine and West, JJ., concurred.  