¶1The pleadings and the evidence were sufficient to require the submission of a separate issue of negligence against each defendant. The judge, in setting aside the jury’s finding that Stokes was not negligent, and in refusing to set aside the finding that Kesler was negligent, acted within the discretionary power vested in him. The decisions are not subject to review.
¶2Stokes alone assigns as error that part of the judgment which stays the execution until the issue of his negligence is resolved. The plaintiff, the judgment creditor, did not appeal. The appellant Kesler does not assign the stay as error. Stokes, while still a party to the action, is not a party to, nor prejudiced by, the judgment. Hence he is not in a position to challenge the stay of execution.
¶3No error.