#### Andrew M. Gatch *v.*David Simkins.

1. In an action on a written instrument against two or more persons jointly and severally bound, the finding by tho court, under section 449 of the code, that one or more of the makers signed the same as surety or bail, for his or their co-defendant, and the certificate in the judgment showing which is principal and which are sureties, do not conclude the parties as to the facts so found and certified, in an action subsequently instituted for contribution.

*%*The effect of such finding and certificate is not changed by the fact that the defendants at the trial appeared, and filed answers in which each: alleged that the ..others were principal debtors.

Motion for leave to file a petition in error to the District Court of Clermont county.

The original action was brought by the defendant in error against the plaintiff in error, in the Court of Common. Pleas of Clermont county, to recover contribution on account of money paid by the plaintiff in the action for. the *90use of the defendant, on a judgment recovered by the personal representatives of "William Weyland, against the plaintiff and defendant and one "Shaw, in a former action in said court.

The defendant denied that he was a principal with the plaintiff for the payment of the Weyland judgment, and set up, by way of further defense to the action, that in the action of Wayland against the parties and Shaw, it was adjudged, upon an issue duly made in the case, that the said Simkins was principal debtor, and that the defendant and Shaw — the other defendant in said action — were his sureties. To this answer the plaintiff replied *nul tiel record.*

Upon the trial of the issue thus made, the defendant offered in evidence a transcript of the record in the case of *William Weyland*v. *David Simkins, Andrew M. Gatch, et al.*This record showed that Andrew M. Gatch had filed in the case a paper purporting to be an answer, in which he set up and claimed that David Simkins was principal debtor in the note sued on, and that he (Gatch) was his sui-ety. Afterward, Simkins filed in the case another paper, purporting to be an answer, in which he set up and claimed that he was not the principal debtor" on the claim sued on, but, on the contrary, that said Gatch and Shaw (the other defendant) were .jointly liable with him on said note as principals.

It also appears," from the record of said case, that the court rendered judgment in favor of Weyland against all the defendants, and further found, upon the issues joined between the defendants, that Simkins was principal debtor, and that Gatch and Shaw were his sureties, and thereupon it was ordered that execution first issue against Simkins, etc.

To the introduction of this record in evidence the plaintiff below objected.

Afterward, the court charged the jury to the effect, that the finding of the court in Weyland’s case, that the plaiutiff, Simkins, was principal debtor in said action, and that the defendant and Shaw were his sureties only, was conclu*91sive of the fact so found, and constituted a bar to the action for contribution. To this charge the plaintiff excepted.. Verdict and judgment having been rendered in favor of the-defend ant,-the plaintiff filed his petition in error in the District Court, which resulted in a reversal of the judgment for error in the charge of the court.

The origitíal defendant now asks leave to file a petition in error to reverse the judgment of reversal. The only-question in this case is, was there error in the charge of the-Court of Common Pleas to the jury?

*Griffith $ Swing,*for the motion.

*T. M. Lewis,*contra.

By the Court.

We think there was error in the charge-of the Court of Common Pleas to the jury. The finding-of the court in Weyland’s case, that Simkins was principal and that Catch and Shaw were his sureties, has no other-effect than that prescribed in section 449 of the code. It does not conclude the parties in an action for contribution afterward instituted. The supposed issue joined in the case-does not change the effect of the finding. The same order might have been made upon a claim presented orally. The supposed pleadings were unauthorized, and conferred no-jurisdiction upon the court, other than that conferred by said section 449 of the code.

*Motion overruled.*