Argument for Respondent.

Third-D. B. Francis was a necessary party to the complete determination of the controversy, and the plaintiff could not have judgment without making him a party. (Van Epps v. Van Duzen, 4 Paige, 64; Shaver v. Brainerd, 29 Barb. 25; Practice Act, § 17.)

Where an action is brought to enforce a liability, both of the partnership property and of the partners individually, all the members are necessary parties; and in case of the death of a partner, his personal representatives are necessary parties. (Voorhies v. Baxter, 1 Abbott, 44–45.)

To a bill for an account of partnership transactions, all the partners should be parties; and so for a share in a partnership adventure, all the partners having shares must be parties. (Collyer on Partnerships, § 361, and authorities cited.)

If a partner becomes bankrupt pending suit, his assignee must be brought in. If he die his personal representatives must be substituted. (Id. § 362.)

Fourth-The alleged error in rejecting commissions is based on the fact of the defendants being held as dealers and co-partners, carrying on a retail trade, and held for the retail price of the goods under the alleged agreement in the complaint; and at the same time deprived of their commissions, which were secured in the very agreement that is being enforced against them.

The error in the statement of the interest account is equally manifest. Two per cent. interest per month was expressly reserved in the agreement and admitted in the complaint; yet the commissioner states the accounts allowing to defendants only ten per cent. interest per annum.

Henry B. Janes, for Respondent.

First-The dismissal of an appeal, is an affirmance of the judgment, and a bar to any other appeal from the judg ment: (Karth v. Light, 15 Cal. 324; Rowland v. Kreyn hager, 24 Id. 52; Chamberlain v. Reed, 16 Id. 207; Rules Supreme Court, Rule 3.) It is also a bar to any other appeal in the case.

Second-Appellants opposed plaintiff's motion to amend and thus cure all possible error on these issues at the trial, and before final judgment.

A party cannot complain of an order as erroneous which was made with his consent. (Mott v. Smith, 16 Cal. 533; Murhultz v. Sessions, 9 Id. 277; Brotherton v. Hart, 11 Id. 405; Winter v. Rose, 32 Ala. 447; Hopkins v. Donaho, 4 Fox 336. See also text of opinion in Claflin v. Farmer's Bank, 36 Barb. 540.)

RHODES, C. J., delivered the opinion of the Court, SPRAGUE, J., and TEMPLE, J., concurring:

The dismissal of the appeal from the judgment, under Rule 3 of this Court, is not a bar to an appeal from an order, subsequently made, refusing the defendant's motion for a new trial.

The answer tendered the issue of a misjoinder of J. W. Francis, as a defendant, and of the nonjoinder as a defendant of D. B. Francis. The Court found that J. W. Francis was not, and that D. B. Francis was, a member of the firm of Cox, Francis & Co. The plaintiff thereupon offered to amend the complaint by striking out the name of J. W. Francis and adding the name of D. B. Francis as a defendant, but the motion was opposed by the defendants and was denied by the Court. We are not apprised of the grounds of the objection, but whatever they may have been, it is clear that the defendants have no cause to complain of the misjoinder or the nonjoinder, for leave to amend the complaint was denied on their objection. The order will be regarded as having been made at their instance and with their

consent.

The defendants insist that they should have been allowed interest on their advances, at the rate of two per cent. per month, and commissions on their sales at the rate of twenty per cent. The complaint states that the agreement to pay interest at two per cent. per month was verbal, and the answer does not allege that the agreement was in writing. The statute in force at that time, did not give effect to an

Points decided.

agreement for a greater rate than ten per cent. per annum, unless it was made in writing. Whether interest on the advances was allowed at the rate of ten per cent. per annum, for that or some other reason, cannot be ascertained from the record in this Court. The principles upon which the account between the parties was to be stated, had been determined, before the Commissioner was ordered to state the account; but the evidence on which the Court acted is not presented in the record. As the alleged error occurred at that stage of the case, the action of the Court cannot be reviewed in the absence of the evidence upon which the principles were determined, upon which the account was required to be stated.

The question as to the commissions, occupies the same position as that in respect to the interest. The complaint avers that commissions at the rate of twenty per cent. were to be allowed on the sales at retail, while the answer claims such commissions on all sales; but, without having the evidence before us, we cannot ascertain what the agreement was, nor whether any sales were made at retail, after the time for which commissions were allowed to the defendants. Judgment affirmed.

WALLACE, J., being disqualified, did not sit in the case.

CROCKETT, J., expressed no opinion.

No. 2,274.

CATHERINE DOYLE, et al. APPELLANTS, v. EDWARD FRANKLIN, et al RESPONDENTS.

BJECTMENT. PLEADING.- DEFENDANT CAN NOT BE ENJOINED FROM CLAIMING TITLE.— JUDGMENT A BAR.- The plaintiff in an action of ejectment can not ask that he be adjudged the owner and put into possession, and that defendant be enjoined from claiming title to the land recovered. He must rely upon his judgment as a bar.

IDEM.- Where the issue is whether defendant or plaintiff has the better title; a judgment obtained by the former would be conclusive upon the title, and operate as a bar in his favor.

Argument for Appellants.

EJECTMENT. BILL TO QUIET TITLE NOT an Equitable DEFENCE.- A bill to quiet title filed by defendant in an action of ejectment is not an equitable defence to the plaintiff's cause of action. PLEADING. MATTERS

proper

OF DEFENCE. CROSS COMPLAINT.- Where matters of defence are pleaded as such, they should only be regarded as matters of defence, notwithstanding a prayer for affirmative relief at the conclusion of the answer; matters of the cause of complaint must be separately stated as a cause of action against the plaintiff, and not as a defence to the plaintiff's cause of action.

IDEM.-A plaintiff need not reply to any affirmative matter set up in defence, or by way of avoidance or counter-claim.

APPEAL from the District Court of the Twelfth District, City and County of San Francisco.

The facts are stated in the opinion.

E. L. B. Brooks, for Appellants.

The Court below erred in refusing to allow plaintiffs to introduce testimony in support of the allegations of the complaint, and in granting defendants' motion for judgment on the pleadings. The Court was led into both these errors by reason of a mistaken idea as to the theory of pleading, and by a misconception of Secs. 46 and 50 of the Practice Act. Sec. 46 of the Act provides that the answer of defendants shall contain * *. Second, A statement of matter in avoidance-a counter claim * * a subject matter

*

*

when

of cross complaint. Sec. 50 provides that the answer contains a cross complaint, the parties may answer or demur.

The answer of defendants in this case contains a series of denials of the allegations in plaintiffs' complaint, then sets up matter which, it is pretended, constituted a "further and separate answer" to the complaint, and finally set up new matter as a "further and separate defense" to the complaint.

The first of these last two answers is not a cross-complaint, requiring a reply. It is not pleaded as a crosscomplaint. The answer does not state it to be a cross-complaint, but does expressly allege it to be a separate answer.

Opinion of the Court-Temple, J.

It is not good in form as a cross-complaint, it merely states certain facts, and does not pray for relief.

Again, this answer is only an affirmative method of denying plaintiffs' allegations, and is not new matter. (Goddard v. Fulton, 21 Cal. 430.) The answer does not present a cross-complaint and did not require a reply. (Herold v. Smith, 34 Cal. 122; Jones v. Jones, 38 Id. 584.)

E. A. Lawrence, for Respondent.

Exception is taken on the ground that the words "cross complaint" are not added after "For a further and separate defence," etc. Section 50 of the Practice Act provides that "When the answer contains a cross-complaint, the parties may answer or demur."

Section 70 of the Practice Act provides that, "In the construction of a pleading for the purpose of determining its effect, its allegations shall be liberally construed, with a view to substantial justice between the parties," and Section 71 provides as follows: "The Court shall, in every stage of an action, disregard any error or defect in the pleadings or proceedings, which shall not affect the substantial rights of the parties.'

99

In Ayers v. Bensley, (32 Cal. 620), it was held that a defendant in an action of ejectment may file a bill under Section 254 of the Practice Act, to determine adverse claims.

TEMPLE, J., delivered the opinion of the Court:

The complaint in this action avers that, on the 28th of April, 1865, plaintiffs were the owners and in the exclusive possession of the premises in controversy; that, on that day, the defendant (Franklin) commenced an, action against certain parties to recover the property, but the plaintiffs in this action were not made defendants in that action, and were not served with summons, and had no notice in any way of the pending of the action until the issuance and service of a writ of possession under it; that the plaintiffs were ousted