Page:Federal Reporter, 1st Series, Volume 9.djvu/262

FORSYTH V. VAN WINKLB. 247 �FoRaYTH and another v. Van WiNKiiB and others. {Circuit Court, D. Indiana. November 26, 1881.) �L Ejectmbnt — New ob Second Tbial as a Matteb op Right undee thb Statb Civil Code. �In proceedings to recover possession of real property under the Civil Code of Indiana, no one not concluded by the judgment is entitled, under the Code, (section 601,) to have the judgment vacated, and a new trial granted as matter of right, upon payment of costs, etc. Such right ia limited to the party against •whom the judgment is entered, his heirs, assigns, or representatives. �2. PuEADiNGs— Lapsus Calami— JudgmbnT — Test of — Recokd. �Where an amended complaint is flled, before answer, against a single defend- ant in substitution of a complaint originally flled against several defendants, upon which amended complaint trial and judgment are had, the mere mis- taken or careless use of the plural "defendants" in the subsequent pleadings, ^nd in the judgment for costs, does not conclude any one save the single de- fendant to the amended complaint. The judgment is to be tested by the whole record. �McDonald e Butler, for plaintiffs. �C. P. Jaeobs, for defendants. �Gresham, D. J. The plaintiffs, Caroline M. Forsyth and Jacob Forsyth, her husband, commenced their action of ejectment in thia court on the twenty-fifth of July, 1874, against Sylvaas P. Van Winkle, Eichard Bobinson, Charles Kose, James Lanagan, and John A. Smale, to recover possession of a large amount of real estate in Lake county, Indiana. Process was duly served on all the de- fendants. �On the seventeenth of December, and before appearance to the action, the plaintiffs flled, against the defendant Smale only, a separate complaint, em- bracing part of the lands described In the original complaint, and at the same time flled a separate complaint against the defendant Rose, embracing another part of the lands described in the original complaint. After these separate complaints were flled, — on the twentieth of January, 1875, — no answers having yet been flled to any of the complaints, the court ordered "that the said complaint against Smale stand as the complaint in this action, and that the complaint against Rose be docketed as a distinct and separate action," which was done. �To this complaint Smale flled a demurrer, which was overruled. On the thirtieth of June, 1876, it appears from the record that the "defendants" were ruled to answer. On the fourteenth of STovember, Smale answeied the amended and separate complaint against him, and the general deniai was flled for the defendants. The case was then put at issue on the special aiiswer of Smale by a reply in general deniai. The cause was heard before the court on stipulation of counsel, and the record shows that on the sixth of June, 1879, judgment was rendered for the plaintiffs against John A. Smale for the recovery of the land described in the amended complaint, and against all ti.e ��� �