Adopts brief in No. 2634, supra. Adopt brief in No. 2636, infra.
OPINION This case is before the court upon a separate appeal by the defendant H.G. McCulloch. The record in the case is identical with that of the case of Holtzman v. Bennett et al. (No. 2634)229 P. 1095, this day decided. That appeal is from the judgment and order denying a motion for a new trial.
All of the questions presented herein are disposed of *Page 285 in case No. 2634, except the one hereinafter considered, and we need not reconsider questions so disposed of.
1, 2. It is insisted that the court erred in ordering that appellant be made a party defendant in this case and in limiting the time in which he should answer. Counsel occupies a rather anomalous position in insisting that the court erred in making the appellant a defendant in this case and in insisting that it erred in not making him a defendant in the case of Richmond Machinery Co. v. Bennett et al. (No. 2636) 229 P. 1098. The court did not err in ordering that the appellant be made a party defendant when it was made to appear that he held an interest in the property, nor did it commit prejudicial order in limiting his time in which to plead. He testified that he at all times represented the defendant Argus Mines Company in preparing for its defense, which is identical to that of appellant.
It not appearing that the appellant was in any way prejudiced, it is ordered that the judgment appealed from be affirmed, subject to an order of modification as made in case No. 2634.
ON PETITION FOR REHEARING December 13, 1924.