Irvine v. Rapp

KERRIGAN, J.

This is an appeal from an order denying plaintiff’s motion for a new trial.

The plaintiff in this ease is the defendant in the action entitled “A. M. Hendry vs. Louis A. Irvine, etc., No. 533,” this day decided, and is .brought to recover the same claim which in said action numbered 533 had been set up by said Irvine as a counterclaim—the bringing of a separate action being made necessary by the fact that the claim for damages of William Irvine (defendant’s intestate in said action numbered 533) was in excess of the amount claimed by plaintiff therein (who was the assignee of the Union Machine Com

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pany), and by the fact that the machine company was not a party to that suit. The two cases were tried together upon the same evidence; and in this case the court rendered judgment against plaintiff and in favor of defendants for costs. Plaintiff made a motion for a new trial, which was denied.

The points urged for a reversal of the order are the same as those considered in said case numbered 533; and for the reasons there given we think the action of the court in denying plaintiff’s motion for a new trial was correct. The order is therefore affirmed.

Cooper, P. J., and Hall, J., concurred.