There is no precedent to support the motion to set aside the judgment, at the instance of Dey. Possibly .the city of Newbern, upon the disclosure of the fact, that Dey uvas the surviving partner might (for the purpose of delay) have maintained a writ of error, for matter of fact. Rut the ridea that Dey can have the judgment set aside, so as to have ¡himself substituted as plaintiff, and the judgment against the city of Newbern reinstated in his name as surviving partner, .has no reason or authority to support it.
Concurring with his Honor on this point, we differ in respect to the orders, making Dey a party plaintiff, and directing an account of the indebtedness of the firm of Smith & Dey, so as to have a settlement of the firm, upon a motion in the ease of Smith v. City of Newbern. His Honor erred in making these orders, and carried the practice of “ motions in the cause” farther than is warranted by the cases.
In MoBryde v. Patterson, at this term, it is said: The Code of Civil Procedure, in effect, requires or at least strongly recommends, all matters of controversy, growing out of the same transaction, or concerning the same subject, between all parties having an interest therein, to be disposed of in one action. This mode of procedure answers a good purpose, in tjie general, by saving costs, and preventing the necessity of resorting to more than one Court; but in particular cases, (of which the one now under consideration is a notable instance,) ■it produces, so much confusion and complication as to almost put it out of the power of any one Court to deal with the • case.”
There, the complications accumulated in the progress of the *309case. But here, the case is at an end — judgment; money paid into office. So there can be no motion in the cause, even if the matter thereof was germain to the case. But here, it is merely a controversy as to the settlement of the firm of Smith & Dev.
His Honor ought to have left that matter to be disposed of by an action of account by Dey, surviving partner, against Mrs. Smith, the administratrix of the deceased partner, in which action the plaintiff might have a restraining order to protect the fund, that is, the money paid into office on the judgment, Smith, v. City of Newborn, until the account of the firm was taken and the manner of distribution fixed.
It is not necessary to notice the other orders made by his Honor, in anticipation of the report of the Clerk. It is the practice to let such matters fall under the entry, ‘‘ retained for further directions.”
There is error.
•Peb Cubia.m.Judgment below reversed, and judgment dismissing the motion, &c., at Dey’s cost.