#### Gustave Biart et al. v. W. H. Myers et al.

Filed March 7, 1900.

No. 11,154.

1. Motion for New Trial: Dismissal op Petition in Error. Tlie lack of a,motion for a new trial will not justify a dismissal of a petition in error.

2. -; — : Review. A motion for a new trial is not esssential to a review of a decision of the district court affirming’ a cause taken to that court by proceedings in error.

3. Cross-Assignment: New Parties. When a defendant in error has filed a cross-assignment of errors without bringing in new parties, he is thereby precluded from urging the dismissal of the petition in error of his adversary on the ground of defective parties.

Error from the district court of Sarpy ■ county. Tried below before Kéysor, J.

*Motion to dismiss overruled.*

*William B. Patríele,*for plaintiff in error.

*Will H. Thompson,*for defendant in error,

argued in support of motion to dismiss that no motion for a new trial was filed in -the district court, and the only errors

*712complained of are the errors claimed to have occurred during the trial, and on the rendition of the judgment. No bill of exceptions, had ever been settled by the plaintiff in error, so that no question could arise upon a disputed statement of fact. This proceeding must be dismissed. The case (‘.ornes clearly Avithin the rule laid doAvn in *Leaoh v. Renwald,*45 Nebr., 207. It is Avell settled that to obtain a revieAv of a joint judgment by petition in error all persons, shown by the record to be substantially interested, must be made parties to the proceeding, as plaintiffs or defendants, citing *Wolf v. Murphy,*21 Nebr., 472; *Hendrickson v. Sullivan,*28 Nebr., 790; *Andres v. Kridler,*42 Nebr., 784; *Polk v. Coveil,*43 Nebr., 884; *Kuhl’v. Pierce County,*44 Nebr., 584; *Collins Mfg. Co. v. Seeds Dry-Plate Co.,*55 Nebr., 576; *Bales-Smith Investment Co. v. Scott,*56 Nebr., 475. . ‘

Norval, C. J.

Petitions Avere presented to the county superintendent of Sarpy county praying the formation of .a new school district, and remonstrances were filed Avith him protesting against such proposed action. On the hearing, the county superintendent formed a neAV school district, known as district No. 40. A transcript of the proceédings before that officer, and a petition in error, were filed in the. district court. The title of the cause in that court, as well as the petition in error, was “Gustave Biart v. W: H. Myers” et al. The parties were likewise so described in the summons in error issued out of that court. Neither in the pleadings nor on the journal were the parties designated with any other or further particularity. Objections to the jurisdiction of the court were filed by the defendants in error, W. H. Myers and Adam Kas, respectively, which were overruled, and the order and proceedings of the county superintendent were affirmed. Error proceeding was prosecuted to this court, the cause being entitled in the petition in error precisely as in the court below, and the parties Avere not otherwise desig*713nated in the petition in error. Subsequently, Adam Kas filed a cross-petition in error herein, but did not bring in new parties to the proceedings; afterwards he filed a motion to dismiss the petition in error on substantially the grounds that no motion for a new trial was filed in the court below, and that there is a defect of parties plaintiff and defendant. On this motion a submission has been taken.

The failure to file a motion for a new trial constitutes no cause for dismissing a petition in error. See *Leighton v. Stuart,*8 Nebr., 96. Mo vero ver, such a motion is unnecessary to a review of the judgment of the district court made in an error proceeding. See *Dreyfus v. Moline, Milburn & Stoddard Co.,*43 Nebr., 233; *Weitz v. Walter A. Wood Reaping & Mowing Machine Co.,*49 Nebr., 434; *Claflin v. American Nat. Bank,*46 Nebr., 884.

Adam Kas is precluded from asserting that there is a defect of parties plaintiff or defendant, inasmuch as he has filed a cross-petition in error, without bringing in new parties to the proceeding. ■ Moreovér, there is no defect of parties. The judgment of the district court alone is assailed, or is before us for review, and all the parties to such judgment are made either plaintiffs or defendants in error. Whether there was a defect of parties in the district court, is a question which does not concern us at this time. The motion to dismiss is overruled.

Motion denied.