
    B. W. Miller et al. v. Daniel Longacre et al.
    1. Where the makers of a promissory note are sued jointly, an answer by one of the defendants, setting up as a defense that the consideration of the note was illegal interest, inures to the benefit of all the defendants.
    2. Where in such case there was a joint finding and judgment against all the defendants on the first trial, and they were allowed a second trial under the statute, the extent of their liability is the amount of the recovery on the second trial, notwithstanding the second trial proceeding may have been erroneously dismissed as to all except the defendant in whose name the answer was filed.
    3. The judgment rendered on the first trial was vacated, if not entirely, at least to the extent that it was in excess of the amount recovered on the second trial.
    
      4. The more appropriate remedy, where an execution has been erroneously issued, is by application to the court from which it issues to set it aside. Yet, where it has been sent to another county, and suit has been brought to enjoin its enforcement, to which suit the execution creditor appears and answers to the merits, making no objection to the jurisdiction or mode of proceeding, relief will be granted by injunction.
    Motion for leave to file a petition in error to reverse the judgment of the District Court of Union county.
    The original petition was filed by B. W. Miller and Thomas Miller, partners under the firm name of B. W. Miller & Brother, and Jonathan G-. Miller, against Daniel Longacre and another, in the Court of Common Pleas of Union county, to enjoin the enforcement of an execution issued in favor of Longacre against the plaintiffs for the sum of $1,019.41, being the amount of a judgment recovered by Longacre against the plaintiffs jointly in the Court of Common Pleas of Marion county, at the January term, 1873. The execution had been levied on the personal chattels of Jonathan G-. Miller.
    The petition states that a second trial was taken by the defendants in the action in which the judgment was rendered, and that on the second trial a verdict was found in favor of Longacre for the sum of $397 only, on which judgment was rendered; that the judgment last named remains in full force, and the judgment on which the execution was issued, was vacated by the second trial.
    The petition avers a tender of the amount due on the judgment rendered on the second trial including interest and costs, which amount the plaintiffs brought into court.
    Longacre, the defendant, w'as a non-resident of the state; but he filed an answer in which he set up in substance that the judgment first rendered remains in full force, and that the execution issued thereon which the plaintiffs were seeking to enjoin was valid and ought to be enforced for the full amount thereof; that the proceedings taken for a second trial did nor affect said judgment, for the reason, as was alleged, that no issue of fact was joined which entitled the parties, or either of them, to a second trial.
    On the trial it appeared that the action in which the judgment was recovered was brought by Longacre against B. W. Miller and Thomas Miller, partners as B. W. Miller & Brother, and Jonathan G. Miller, upon a promissory note, of which the following is a copy :
    “ November 2,1871.
    “ One year after date, for value received, we, or either of us, promise to pay Daniel Longacre nine hundred and twenty-five dollars and eighty cents, with eight per cent. ITlfofOCíf
    “B. W. Miller & Bao.,
    “J. G. Miller.”
    The defendants were all served with process, but B. W. Miller alone answered. In his answer he admitted an indebtedness to the plaintiff in the sum of $365 upon said note; but as to the residue he alleged, in substance, that the note was given by the defendants to the plaintiff for illegal interest computed on two other promissory notes made by the defendants to the plaintiff, and that at the time said note was given there was only due the plaintiff from the defendants the said sum of $365.
    
      To this answer the plaintiff replied. The first trial resulted in a finding for the plaintiff, on which judgment was rendered as before stated. Thereupon the defendants demanded a second trial, to which the court found them entitled, and fixed the amount of the undertaking to be by them given in the sum of $1,500. The undertaking was entered into in due time, and contained the condition, that “if the said B. "W. Miller and Thomas Miller, partners under the firm name of B. W. Miller & Brother, and Jonathan G-. Miller, defendants, the party obtaining such second trial 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 the said defendants consequent upon such second trial, then this obligation shall be void; otherwise in full force in law.”
    At the May term following, the plaintiff' moved the court to set aside the order allowing a second trial, and to strike the case from the second trial docket. As to the defendants, Thomas Miller and Jonathan Gr. Miller, the motion was sustained, and as to B. W. Miller, overruled.
    On the second trial a verdict was rendered in favor of the plaintiff, Longacre, in the sum of $397. On this verdict the court rendered judgment in his favor against B. W. Miller.
    On the filing of the original petition in the case now under review, a provisional injunction was allowed. The case came into the District Court by appeal, and on final hearing the petition was by that court dismissed.
    The object of the present proceeding in error is to obtain the reversal of the judgment of the District Court dismissing the petition.
    
      Porter Sterling, for plaintiffs in error:
    B. W. Miller filed an answer going, to the whole action, which was replied to by Longacre, and no other advantage was sought to be taken of it. B. W. Miller was a defendant, and was treated as such by Longacre.
    As to the effect of Miller’s answer, and in that it inured to the benefit of all the defendants, the court is referred to Sprague v. Childs, 16 Ohio St. 107; Secrest v. Barbee, 17 Ohio St. 425; Cook v. Attwater, 21 Ohio St. 628.
    The setting aside of the order granting a second trial as to Thomas and J. G. Miller leaves the case as if the order had not been made, and the second trial, on the issue made by the answer of B. W. Miller, and the reply thereto, decides the whole ease, and the last judgment of $397 is the only judgment in force.
    
      W. Z. Davis, with whom was J. Bartram, for defendant in error:
    I. There were but two makers of the note sued on in Marion county; the firm B. "W. Miller & Brother being one, and Jonathan G. Miller the other. 5 B. Mon. 168,171; 1 Wend. 525; Parsons on Par. 346.
    As to J onathan G. Miller, therefore, we claim: that the answer of B. W. Miller was a nullity, and did not make up an issue of fact between the parties or any two of them; that neither of the actual parties answered, and both are yet in default. Hence there was nothing in the case for a jury to try, and the allowance of a second trial to the very parties who were in default, and the filing of a second trial bond by them, was clearly unauthorized and void.
    The complainants can claim nothing from that which is void. 4 Ohio, 469 ; lb. 327; 5 Ohio, 182; 1 Johns. Ch. 49 ; High on Injunctions, secs. 78, 86, 99, 103, 132, and 165.
    The Court of Common Pleas of Marion county dismissed the second trial as to Thomas Miller and Jonathan G. Miller, and thus allowed the first judgment to stand as to them, but refused to set aside as to B. W. Miller; and upon the issue between him and the plaintiff the cause was finally tried.
    So far as the complainants may complain of this action of the court, it is sufficient to say that they have their remedy at law, and can not obtain by injunction a correction of errors at law. High on Injunction, sec. 130, 131.
    The court having dismissed the second trial as to Thomas-Miller and J onathan G. Miller, the execution was at least regular as to them. If this was error, they must resort to another jurisdiction for their remedy.
    Wo maintain that the defense of B. W. Miller is several only, leaving a valid cause of action against the other defendants.
    The plea of usury is purely a personal privilege. 39 Mo. 445, 448; 37 N. Y. 224; 9 N. Y. 31; 33 N. Y. 81.
    A usurious contract is merely voidable. Morgan v. England, Wright S. 0. 112; Selser v. Brock, 3 Ohio St. 302.
    The plea of usury, being a personal privilege, is like that of infancy. The following cases, where infancy has been pleaded, may throw some light on the scope of the plea in this case. Parsons on Part. 23 ; 1 Pick. 500; 10 lb. 281 ; 5 Johns, 160 ; 18 lb. 478; 20 lb. 123; 5 Wend. 224 ; 1 Cow. 424; 13 Maine, 474; 9 Ind. 871; 32 N. H. 167; 2 Rand. 478; 3 A. K. Marshall, 457; 18 Ohio, 584; 3 Barr, 161, 178.
    From the foregoing it is clear that the defense of B. W. Miller, setting up a voidable contract, was merely personal, and can not avail another who does not speak for himself. And the answer of B. W. Miller can not inure to the benefit of Thomas Miller, nor of B. W. Miller & Brother, nor of J. G. Miller; hence the execution was properly issued on the first judgment, and should not be enjoined.
   White, J.

The first question in this case is as to the éffect of the second trial upon the judgment rendered on the first trial.

The plaintiffs in error claim that the defense set up by B'. W. Miller inured to the benefit of all of the defendants; and that the extent of their liability is the amount found due the plaintiff in that case on the second tidal. That the effect of the verdict and judgment on the second trial was to vacate the first judgment, at least to the amount of the excess above what was recovered on the second trial.

The defendant in error, Longacre, on the other hand, contends that the answer filed was not available as a defense for any of the parties; that the ease was not one for a second trial; and, consequently, that the first judgment remained in full force against all the defendants, and that the execution was properly issued thereon.

The ground stated in argument for this claim is, that there was in law but two parties defendant in the case—■ one the firm of B, W. Miller & B.ro., and the other Jonathan G. Miller—and that the answer, not having been filed either in the name of the firm or of Jonathan G. Miller, was a nullity.

This position rests on a misconception of the legal relation of the parties, and is wholly untenable.

There were three parties defendant—B. W. Miller, Thos. Miller, and Jonathan G. Miller—-all of whom, were sued jointly. True, the first two named were described in their character as members of the firm of B. W. Miller & Bro.; but this description did not affect their joint liability with Jonathan to the plaintiff on the note sued on. Each was liable for the whole amount due on the note; and satisfaction of a judgment recovered against them might be obtained from the property of either.

The answer, although filed in the name of B. W. Miller, was, from the nature of the defense which it set up, evidently intended for the benefit of all of the defendants. That they so understood it is apparent from the fact that they all united in obtaining the allowance of the second trial, and that the undertaking for such trial was given in behalf of all.

Under the circumstances of the case, in dismissing the proceedings on the second trial as to part of the defendants, the court committed a palpable error.

The case came clearly within the rule laid down in Sprague, Adm’r v. Childs, 16 Ohio St. 107.

The rule is that if the defense set up by a party taking a second trial is several only, leaving a valid cause of action against the other defendants, the liability of those not taking a second trial, as fixed by the findings on the first trial, will remain unaffected by the second trial. But if the defense is joint in its nature, and goes to the validity of the cause of action, it will, to the extent it may be established, inure to the benefit of all of the defendants as fully as it would have done upon the first trial.

It was also decided in that case that all the parties to the action, whose interests may be affected by the results of the second trial, continue before the court, quoad such interest; and that when the facts in controversy are ascertained, the judgment must conform to the rights of the parties.

The defense now in question did not go merely to the exoneration of B. W. Miller from liability, leaving a valid cause of action against the other defendants; but to the invalidity of the note, for want of consideration, as a cause of action against any of the defendants.

We are not called on in this case to determine whether rhe first judgment, for the purposes of execution, was wholly vacated by the second trial. We think it clearly was so vacated, to the extent that it was in excess of the amount recovered on the second trial; and this is sufficient to show that the execution -was not only unauthorized against B. W. Miller, but also against the other defendants.

The remaining question is whether the plaintiffs in error mistook their remedy in bringing an independent suit in the Court of Common Pleas of Union county, to enjoin the execution. The question is whether they ought not to have applied to the Court of Common Pleas of Marion county— the court from which the execution issued—by motion to have the execution set aside, and whether that was not their only remedy.

That mode of procedure would doubtless have been the more appropriate; but if it had been resorted to, it is most likely a restraining order would have been required to stay proceedings under the execution until the motion could have been acted on by the court.

Jurisdiction in equity has been maintained to enjoin the enforcement, by execution, of a judgment which had been paid, notwithstanding the light of the complainant to proceed by motion in the court issuing the execution, to have satisfaction of the judgment entered, and the execution set aside. Crawford v. Thurmond et al., 3 Leigh, 85.

In the present case, the judgment had not been paid, but the amount due had been tendered, and it was brought into court for the use of the plaintiff in the execution. It is also to be observed that the defendant in error, the execution creditor, appeared and answered to the merits, making no objection to the jurisdiction or the mode of proceeding. In such case, where the right of the party is clear, and the court is competent to give relief, it has been often held that the objection that there is an adequate remedy at law comes too late. Rees v. Smith, 1 Ohio, 124; Nicholson v. Pim, 5 Ohio St. 25.

Under the circumstances, therefore, we are of opinion that the injunction ought to have been granted, and that the court erred in dismissing the petition.

Leave granted, judgment reversed, and cause remanded for further proceedings.

Welch, C. J., Rex, Gilmore, and McIlvaine, JL, concurred.  