the same witness was subsequently called by the defendants, and his testimony on this examination was as we have already stated it. Eliminating the deposition from the record does not at all affect the case. There was, therefore, no reversible error. The plaintiff was asked if he did not in another action against the steamer Eclipse, in which he was claimant, claim that the total earnings of the steamer for the season of 1880 was $8,000, which included the amount for which plaintiff was prosecuting this action. Objection to this inquiry was sustained. We find no error in this. The witness was not asked whether he claimed this money in that action. He was merely asked whether he did not claim that the steamer’s earnings were a certain sum. But a mere claim of this money in another action would constitute no defense in favor of those who owed it. Nor would payment of the money by a stranger, nor a recovery of it from a stranger, necessarily inure to the benefit of those who were in fact liable. Moreover, no such defense was pleaded, and the evidence was properly rejected as not being within the issues.
It is next insisted that the court erred in rendering a joint judgment against the surviving defendants and the administrator of the deceased defendant, Leighton. It was undoubtedly the common-law rule that the representatives of a deceased debtor could not be joined with the surviving debtors in the same action whether the defendants were jointly or jointly and severally liable. Pecker v. Cannon, 11 Iowa, 20; Bank v. Mott, 27 N. Y. 633; Bank v. Howland, 42 Cal. 129; New Haven, etc., Co. v. Hayden, 119 Mass. 361. Whether the Code has changed this rule it is not necessary to decide. Assuming that, on proper objection being made, the action, upon the death of Leighton, should have been divided, and plaintiff, upon reviving the action against the administrator of the estate of the deceased defendant, under § 4881, Compiled Laws, should have proceeded against such administrator in a separate action, it is now too late for the surviving defendants to raise this point. No objection was made to continuing the action against all parties jointly in the original suit until after trial and verdict. The defendants, under such circumstances, must be deemed to have waived the objection.
