Herbert v. Building & Deposit Ass'n

18 Ohio C.C. 881

• Court: Ohio Circuit Courts
• Decided: January 15, 1894
• Status: Published

Opinion

SWING, J.

“These causes should be reversed. The only issue joined, and the only proper issue to be joined, was between the plaintiff and Bowles, the administrator. The building association had no reason to contest the matter. It stood willing to pay to the proper owners the amount due. The administrator and the other parties claimed to be the rightful owners. The issue was between them, and the administrator was not only a proper party, but the real party in interese, and the judgment should have been either or for against either of these parties; but the court found that the administrator was not a proper party, and dismissed his answer and cross-petition. When this was done it left no issue to try between the plaintiff and the building association. The plaintiff’s petition then stood without a denial as to theii allegations, and judgments should have been rendered in their favor. But the court found for the building association on the issues joined between it ana the plaintiff, when in fact there were no issues joined. This was error, in our judgment, and the judgments should be reversed, and the causes remanded for further proceedings.”