
    Pratt v. Walworth, William C. Smith and Wilbert L. Smith, Partners Doing Business as the Smith Premier Typewriter Company.
    
      Plaintiff in error — Joined as defendant in error — Resorts to cross-petition — Must file brief, when — Supreme Court practice.
    
    Where one who would properly be a plaintiff in error is joined as a defendant in error and seeks by a cross-petition in error to accomplish the same purpose that is sought by the petition in error he is amenable to the rule which requires that his brief must be filed within five months of the filing of the petition in error.
    (Decided January 22, 1901.
    Error to the Circuit Court of Cuyahoga county.
    On motion to reinstate.
    Pratt brought suit in the common pleas court against Walworth, alleging that he and one Payne had been partners in business, and that upon their dissolution Walworth executed to him, Pratt, a written undertaking to indemnify him against all liability on account of the indebtedness of said firm to L. C. and W. L. Smith, partners as the Smith Premier Typewriter Company. That said obligation not having been discharged, the typewriter company recovered a judgment against Payne and Pratt for the amount thereof with interest. And the petition prayed for a judgment against Walworth for the amount of the judgment and costs. The Smiths as such partners filed an answer and cross-petition, but on motion of Walworth it was stricken from the files. Walworth having interposed an answer to Pratt’s petition, a final judgment was on the trial rendered in favor of Walworth. That judgment was affirmed by the circuit court. Pratt filed a petition in error here for the reversal of the judgments of the circuit and common pleas courts, joining the Smiths as defendants in error. They filed what they styled a cross-petition in error praying.for the reversal of the same judgment. No brief having been filed within five months after the filing of the petition in error as required by rule 2 of this court, the case was dismissed for want of preparation. The Smiths now move to reinstate.
    
      G. A. Neff, for plaintiff in error.
    
      Gilbert & Hills and Carpenter & Young, for defendants in error.
   By the Court :

The petition in error here filed by L. C. and W. L. Smith is not properly styled a cross-petition in error. There was no judgment below in favor of Pratt. The judgment rendered was entire and wholly in favor of Walworth; and what is styled a cross-petition in error was in fact a petition in error by which the Smiths sought precisely the same remedy that was sought by Pratt, and the relief which they seek is in Pratt’s right. Inasmuch as they relied upon Pratt’s petition in error and upon his counsel to comply with the rule, the case affords no ground for reinstatement.

Motion overruled.

Ale Concur.  