#### Samuel Eccles v. United States Fidelity & Guaranty Company.

Filed October 5, 1904.

No. 13,646.

1. Motion to Dismiss. A motion to dismiss a proceeding in error will not lie or die ground that no motion for a new trial was filed in the trial court by the plaintiff in error, because this court will examino the record so far as Is necessary to determine whether the pleadings sustain the judgment.

2. Parties. A.l parties against whom a joint judgment has been rendered must be made parties to a proceeding in error. But this rule has no application where the judgment complained of is several, and in favor of the defendant in error alone.

Error to the district court for Gage county: John S. Stull, Judge.

*Motion to dismiss denied.*

*A. Hardy,*for plaintiff in error.

*Hazlett & Jack, contra.*

Barnes, J.

The plaintiff in error commenced this action against William H. Walker, a justice of the peace, on his official bond, and impleaded the United States Fidelity & Guaranty Company, his surety, to recover the statutory penalty for taking and receiving illegal fees. The bond company filed a general demurrer to the petition, which was amended by interlineation; it thereupon answered over, and the cause was tried in the district court for Gage county to a jury. A verdict was returned for the plaintiff; both defendants filed motions for a new trial. 'Walker’s motion ivas overruled, and judgment was rendered against him on tin' verdict; and the motion of the surety company was sustained. Thereafter the cause proceeded against the said company alone, and a'second trial resulted in another verdict for the plaintiff. Thereupon the company filed another motion for a new trial, which was sustained; *440and also filed a motion for a dismissal of the case, notwithstanding the verdict which was likewise sustained, and the action, as to said company, was finally dismissed. To these rulings the plaintiff excepted and prosecuted error. The bond company has filed a motion herein to dismiss the error proceedings, and on this motion the cause is now presented for our consideration. The substance of the first ground of the motion is that this is an action at law; that it was tried to a jury on questions of fact, in support of which evidence was introduced; that the court sustained defendant’s motion to dismiss, because the petition did not state facts sufficient to constitute a cause of action, and that the evidence failed to prove a cause of action against the defendant herein; and the plaintiff, having failed to file a motion for a new trial, cannot obtain a review of the judgment of the trial court. The action of the district court brought here for review is, in effect, a judgment on the pleadings; a judgment, notwithstanding the verdict, which was summarily rendered in favor of the defendant over the plaintiff’s objections and exceptions. In such a case it is not necessary for the plaintiff to file a motion for a new trial in order to obtain a review of the proceedings, for this court will examine the record so far as it is necessary, to determine whether the petition states a cause of action; in other words, whether"the pleadings support the judgment complained of. *Schmid v. Schmid,*37 Neb. 629; *Scarborough v. Myrick,*47 Neb. 794; *Farris v. State,*46 Neb. 857. One of the grounds of the defendant’s motion to dismiss the action in the court below was that the petition did not state facts sufficient to constitute a cause of action. The. ruling on that point can be reviewed in this court without a motion for a new trial, and the case cannot be disposed of on a motion to dismiss the proceedings in error.

The second and last ground of the defendant’s motion is that the proceedings must be dismissed for want of necessary parties; and it is contended that Walker, against whom a judgment was rendered in the court below, is *441a necessary party defendant in this proceeding. This would he true if the judgment complained of were a joint judgment; in other words, if it were a judgment against the plaintiff in error and in favor of Walker and the defendant company jointly. Such is not the case. Walker is neither liable under, nor is he hound by, the judgment complained of, and therefore is not a necessary party herein. *Kuhl v. Pierce County,*44 Neb. 584; *Farney v. Hamilton County,*54 Neb. 797; *Collins Mfg. Co. v. Seeds Dry Plate Co.,*55 Neb. 577; *Richardson v. Thompson,*59 Neb. 299.

It follows that the matters involved in this controversy cannot be disposed of on an objection to the jurisdiction or a motion to dismiss the proceedings in error. For these reasons the motion should be, and the same is, hereby overruled.

Motion overruled.