¶1delivered the opinion of the court.
¶2This case is before us, on assignment of error. The two first assignments relate to matters, which might have been cured by evidence, in the court below, and consequently cannot be examined in this court, without a statement of facts. The third error assigned is, that the death of Swift had been suggested by the plaintiffs, and no proceedings could be had legally against Lorente, until Swift’s executor had been made party to the suit, the action being a joint one, and not joint and several.
¶3It does not appear to us the court erred. The action was against Lorente, for illegally retaining possession of the note, and against Swift the obligor. The judgment asked against the first was, that she should surrender the note to the plaintiffs, the latter, that he should pay it to them. The causes of action were different, and judgment in favor of Lorente, would necessarily preclude the recovery against Swift, because it would show that the note belonged to her, and not the plaintiff. The action against the one, was for a tort; against the other, on a contract. It was not therefore a joint action, although both parties were brought before the court at once. The question, which of the two was entitled to possession of the note, might well be contested, without the presence'of the obligor.
¶4It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed with costs.