C. J. concurring.

This is an action to recover possession of a mining claim in the county of Calaveras. The appeal is from a judgment of nonsuit, and the only question is whether the nonsuit was properly granted. It was granted on the ground of a misjoinder of parties, there being as to some of the parties plaintiff no evidence of any interest in the subject matter of the suit.

By the forty-fifth section of the Practice Act objections to the misjoinder or nonjoinder of parties must be taken either by demurrer or by answer, and if not so taken are to be deemed waived. In this case the objection was not taken by demurrer or by the answer, and we are of opinion that the nonsuit ought not to have been granted except as to the parties who failed to establish an interest in the property. It is admitted that as to the plaintiff Rowe the evidence was sufficient, and under the statute no question of a misjoinder could arise at the trial preventing a recovery on his part. His position, according to the complaint, was that of a tenant in common with the other plaintiffs, and as against mere *636trespassers, as the defendants would seem to be, there can be no doubt of his right to recover.

Judgment reversed and cause remanded for a new trial.