On Petition for a Rehearing.
McCabe, J.Appellants present a single ground on which they ask a rehearing, or, rather, a modification of the opinion and mandate. They insist that there ought *649to be a reversal, because the evidence clearly proved, without conflict, that the appellees were indebted to the appellants in the several sums stated in the complaint, and to that extent they ask a reversal, so as to allow them to recover their several claims against appellants. And that, of course, must be by several and separate judgments in favor of the appellants, against the appellees.
The complaint was in the nature of a creditor’s bill. Numerous creditors of the firm of Pontius & McElwee brought the action against that firm and others, mortgagees, grantees and the assignee to whom the firm had transferred their firm property for the benefit of their creditors. The object of the suit was to set aside the mortgage and the conveyance as a fraud on the creditors and get an order of the court that the assignee should take possession and control of the fraudulently conveyed and mortgaged property as a part of the assets of the insolvent firm.
The complaint did not proceed upon the theory of an ordinary creditor’s bill; it did not proceed upon the theory of an ordinary suit by creditors to recover a judgment against their debtor and to subject certain property fraudulently conveyed and mortgaged, freed from such conveyance and mortgage, to sale to satisfy such judgments; but it proceeded upon the theory of avoiding the conveyance and mortgage as a fraud on the creditors, and securing an order on the assignee by the court that he take charge and make sale of' said property for the benefit of creditors.
Consistently with this theory, there was no prayer in the complaint for judgment in favor of the complaining creditors for their debts against their debtors, either severally or collectively. It is true the want of a specific prayer for judgment would not preclude the granting of *650such relief, especially where, as here, there was a prayer for all proper relief. But we mention the absence of such specific prayer as pointing to the probable theory on which the pleader intended to proceed in the complaint. In such a case, it has been held by this court, we think properly, that the prayer may be looked to in determining such theory. Monnett v. Turpie, 133 Ind. 424.
But even if the complaint should be treated as proceeding upon the theory of an ordinary suit by creditors to obtain judgments for their several and separate debts and claims, and in the one and same complaint to set aside a fraudulent conveyance and a fraudulent mortgage, we must bear in mind that it was that part of the complaint that assailed the conveyance and mortgage as a fraud on creditors that gave the several creditors a standing in court as joint plaintiffs. Their debts being several and separate, they had no right to join in one common complaint to recover nothing more than a judgment, be that judgment joint or a separate judgment for each debt separately.
In Field v. Holzman, 93 Ind. 205, it was said: “The appellants are members of many different mercantile firms having claims against George Holzman for goods sold him, and all united in one complaint against the appellees. * * * They had a right to have their debtor’s property subjected to the payment of their claims, and they were entitled to joint relief against the fraud sought to be perpetrated by the removal of their. debtor’s property. The claims of the appellants are, it is true, separate, but their right to relief against the fraudulent scheme to keep from them their debtor’s property is joint. They were, therefore, jointly interested in the relief demanded, and this entitled them to unite as plaintiffs. R. S. 1881, section 262; Ruffing v. Tilton, 12 Ind. *651259; Pomeroy’s Rem., sections 266, 267, 268; 1 Dan. Ch. 235.”
The statute, however, provides that * * "causes of action so joined must affect all the parties to the action,” etc. 1 Burns’ Rev. 1894, section 279, subd. 7; 1 Burns’ Rev. 1894, section 281; Bowen v. State, ex rel., 121 Ind. 235.
The finding of the trial court was that that part of the complaint that gave the appellants a standing in court as joint plaintiffs, by which we mean- the right to join their several separate debts as a cause of action in one complaint, was found to be untrue; that is, the court found that there was no fraudulent conveyance and no fraudulent mortgage; that is, the finding of facts and conclusions of law, together, establish that proposition.
The petition for a rehearing! does not question the correctness of this conclusion; but contends that the finding of the court below ought to have followed the evidence, which established, without any conflict, the several debts due the several plaintiffs joining in the complaint.
We held in the original opinion, that the court ought to have done so, and that it was error not to do so, but that it was a harmless error. It ought to have done so, because it was a part of the facts alleged in the complaint. But it was harmless, because the conclusions of law made it impossible to obtain the relief sought in the complaint in setting aside the conveyance and mortgage. But appellants contend that such failure harmed them, because it is tantamount to a finding that their debts did not exist, and makes a bar to a recovery of them in the future.
That is a mistake. The conclusion reached in the original opinion, and of which they do not complain, eliminates entirely from their complaint, should the case *652be reversed and taken back, the feature seeking to set aside the alleged fraudulent conveyance and mortgage, and would leave them with nothing but their joint complaint seeking to recover on separate and several causes of action in favor of different and several parties, in which no two of them have any interest whatever, being causes of action that do not “affect all the parties to the action,” contrary to the statute already quoted.
It is true there was no demurrer for misjoinder of causes of action, for the good reason that there was no misjoinder so long as that part of the complaint seeking to avoid the alleged fraudulent conveyance and mortgage remained intact. But now, that part of the complaint being eliminated, there is a misjoinder. It is also true that a failure to demur for that ground is a waiver of such an error, and had there been such a demurrer for such misjoinder, even though well taken, the statute forbids a reversal for such error; yet, in this case, the appellees have had no opportunity to file such a demurrer, because the appellants joined other matters with their complaint that have proven untrue, that made the complaint good against an attack by such a demurrer.
In Martin v. Davis, 82 Ind. 38, it was held that “To entitle two or more persons to join as plaintiffs, it is not sufficient that they each have a cause of action, arising out of the same transaction or matter, if the relief sought by each be distinct and unconnected. The plaintiffs must have a common interest in the subject of the action, and in the relief. Each must be interested in the relief sought bjr the other.”
For this defect the complaint was held bad on demurrer.
To the same effect are Tate v. Ohio, etc., R. R. Co., 10 Ind. 174; Goodnight v. Goar, 30 Ind. 418; Lipperd v. *653Edwards, 39 Ind. 165; Bliss Code Pl., section 76; Moak’s Van Santvoord’s Pl., 68.
It has often been held by this court, that a complaint that does not state a good cause of action as to all, though it does as to some of the plaintiffs, is bad as to all. Berkshire v. Shultz, 25 Ind. 523; Davenport v. McCole, 28 Ind. 495; Goodnight v. Goar, supra; Debolt v. Garter, 31 Ind. 355; Fatman v. Leet, 41 Ind. 133; Neal v. State, ex rel., 49 Ind. 51; Lipperd v. Edwards, supra; Maple v. Beach, 43 Ind. 51; Brumfield v. Drook, 101 Ind. 190; Brown, Exec., v. Critchell, 110 Ind. 31; Sedwick v. Ritter, 128 Ind. 209; Mississinewa, etc., Co. v. Patton, 129 Ind. 472.
So it has been held by this court, that where a complaint is filed in the names of several plaintiffs, and it does not state a joint cause of action in favor of all, it will be bad on motion in arrest of judgment. Harris v. Harris, 61 Ind. 117.
So, if we were to reverse the judgment of the trial court for the error of failing to find the existence of the several separate debts proven by the evidence in favor of the several appellants, and instruct the court below to grant the motion for a new trial on account of such error; and on such new trial the evidence having established such several debts again, and the finding should be for the appellants accordingly, the trial court would be bound to'arrest the judgment because of the incurable insufficiency of the complaint; and if the trial court did not do so, this court would be compelled to reverse any judgment that should be recovered on such a complaint.
If justice has been done by the verdict or finding, and the appellate tribunal can see that a new trial ought to produce the same result, a new trial will not be ordered. 16 Am. and Eng. Encyc. of Law, 508; Arrington v. Cherry, 10 Ga. 429; Sheldon v. School District, 24 Conn. *65488; Boyd v. State, 17 Ga. 194; Duckett v. Crider, 11 B. Mon. (Ky.) 188; Noyes v. Shepherd, 30 Me. 173; Brantley v. Carter, 26 Miss. 282; Hanna v. Renfro, 32 Miss. 125; Welborn v. Spears, 32 Miss. 138; Welch v. Butler, 24 Ga. 445; Brown v. Bowen, 30 N. Y. 519; Walworth v. Readsboro, 24 Vt. 252; Martin v. Hill, 3 Utah, 157; Board, etc., v. People, 47 Ill. App. 49; Hewitt v. Jones, 72 Ill. 218.
Filed Feb. 15, 1894.The petition for a rehearing is, therefore, overruled.