ON PETITION EOR REHEARING.
Per Curiam:.On the part of the appellant administrator, *561it is insisted that he could not be joined with his codefendants for the reason that an adminsitrator cannot be joined with other defendants who are sued in their individual capacity. We think this contention was fully answered in the main opinion. Another reason, however, exists why this appellant is precluded from raising this question at this time. He was duly substituted defendant in his representative capacity. Thereafter, on March 2,1898, the record recited, under the caption “ King v. Morgan, Administrator et al.,” that the cause was heard on the motion of plaintiff for an interlocutory decree, and that the parties to the action appeared by their respective attorneys. This certainly indicates that the administrator was present by counsel. The following day, according to the record, the motion was sustained, and an order entered that a decree be prepared accordingly. March 10,1898, he applied for leave to answer the complaint. The application was taken under advisement, and denied April 6. No rule had been entered requiring him to plead, but appearing and participating in the argument on a motion for a judgment on the pleadings must be regarded not only a waiver on his part to plead, but a waiver of the right to raise the question of misjoinder. In the original opinion an expression was used which might indicate that the application of the administrator was for leave to file an amended answer. In a sense this is not correct, and yet the answer he asked leave to file, though the first tendered in his representative capacity, was, in fact, an amendment to the answer theretofore filed by Samuel B. Morgan, deceased. This application was before the interlocutory decree, in its details, was entered, but after it had been ordered. It came too late.
The objection to the judgment because it is joint, is not tenable. The interlocutory decree, if objectionable in this respect, is cured by the final decree, which is the controlling one. In the latter the judgment, so far as it affects the administrator, is limited to a specific sum, the same as against the other defendants.
On behalf of the other appellants, it is suggested that, ac*562cording to the opinion, they stand charged with having committed a gross fraud. All questions of fraud in fact, of a character involving moral turpitude, are eliminated from the case. The averments of the complaint on this subject were denied. So far as the decision of the main question is concerned, i. e., the validity of the transaction, it is based entirely upon the proposition that the relation of these appellants to the bank was such, that the law inhibited the purchase by them of the subject-matter in controversy.
It is also urged that certain of the directors of the bank, who acted on its behalf in making the sale of the mining stock in question, should not be permitted to participate in any proceeds realized from such stock by the bank, because they themselves were guilty of a wrong, and that- the cause should be remanded, with directions to ascertain who are the innocent stockholders, and a decree entered that they alone are entitled to participate in the fruits of the judgment. Without indicating any opinion on the question of law suggested, it is sufficient to say that this order cannot be made for several reasons : This proposition was not advanced in the original hearing and cannot be urged on rehearing ( City of Durango v. Chapman, 60 Pac. Rep. 635; ante, p. 169; Orman v. Ryan, 25 Colo. 383; the object of the action is not to distribute the proceeds realized from the stock among the shareholders of the bank; the directors in question are not parties to this action.
The petition for rehearing is denied.
Petition denied.