A petition for rehearing having been filed herein, we deem it proper to supplement our original opinion.
(1) The appellants were served with original notice in July, 1924. They became in default on September 9, 2. JUDGMENT: 1924. On November 13, 1924, the plaintiff filed conformity an amendment to his petition, claiming an to pleading: additional sum of $495, and recovery for such amendment additional sum was allowed in the decree. No after notice of this amendment was served. default.
(2) The decree entered personal judgment against Louis *Page 234 3. JUDGMENT: Cohen and wife, Max Norton and wife, F.H. conformity Rhodes, and G.C. Taylor. The decree further to process provided that for any sum or sums which the and defendants Cohen or Norton should be compelled pleading: to pay upon the judgment, "that they shall have absence of judgment over and against the defendants F.H. any issue. Rhodes and G.C. Taylor, who are primarily liable for the amounts due hereunder."
Neither Cohen nor Norton filed any pleading in the case. Neither the original notice nor the petition of the plaintiff contained any reference to the relief thus granted in the decree. Nor was there any cross-petition by Cohen or Norton against these defendants, asking such relief.
On their face, the foregoing matters would seem to be sufficient, in and of themselves, to require a setting aside of the decree in so far as it entered personal judgment against the petitioners, and a granting of a new trial on such issue.
On June 24, 1925, and while this proceeding was on hearing in the district court, the plaintiff filed a purported remittitur of the item of $495 and interest thereon, covered by his amendment to his petition. Petitioner's petition to vacate was filed on January 24, 1925. This remittitur was doubtless intended to cure the infirmity in the decree to that extent. Whether the infirmity could be so cured, we need not decide. The remittitur seems to have been wholly ignored in the later proceedings in the case. The plaintiff filed no pleading therewith, nor did he put it in evidence. At the close of appellants' evidence, and without introducing evidence on his own part, the plaintiff presented to the court his motion to dismiss the petition to vacate, because there was no showing of "grounds for vacating, modifying, or setting aside the judgment and decree as was made and entered, * * *" and "ask that the judgment and decree of this court as heretofore made and entered on the 11th day of December, 1924, be affirmed." This motion was submitted with the case, and was sustained by the final judgment of the court on November 12, 1925.
With this supplement, the petition for rehearing is overruled. *Page 235