Cook v. Phillips

18 Tex. 31

Opinion

Wheeler, J.

The principal objection to the judgment, urged by the appellant, is, that the Court permitted the plaintiff to dismiss as to certain of his co-defendants who were served with process, and proceed to judgment against him. In Austin et al v. Jordan, (5 Tex. R. 130,) we held this general principle, as deducible from the authorities, that wherever a defendant need not have been joined, or where it may be desirable to dismiss one of several defendants, and the liability of the defendants is such that an action can be maintained against the other defendants without joining him, the plaintiff may enter & nolle prosequi as to him, and have judgment against the other defendants. And in Martin v. Stone, (16 Tex. R.

Footnotes

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*) where two men sued upon a joint and several note, and one of them was served and there was no return of the citation issued to the other, we held that the plaintiff was rightly permitted to dismiss as to the latter, though there was no return showing that the defendant had not been served, and take judgment against the defendant, on whom there was a return of service.

On the authority of these cases, the Court did not err in the ruling complained of. The technical rule of the Common Law, that upon a contract which is joint and several, the plaintiff must sue all or but one, and cannot sue two or more, without sueing all, has never been recognized in our practice.

The plaintiff having the right to dismiss as to some of the defendants, and proceed to judgment against the others, his having done so, could not afford a ground for setting aside the judgment.

The motion was unsupported by affidavit, or other evidence as to the other ground set forth, and was rightly overruled. There is no error in the judgment, and it is affirmed.

Judgment affirmed.

This case is quoted by Mr. Justice Wheeler from memory. A case of Martin v. Stone was decided at the session at Galveston, 1856 (which session is reported in the 16th Tex. R.) involving the point to which it is here quoted^ and none other ; decided as here stated. But we find no Opinion, and it does not appear from the minutes that an Opinion was delivered in the case.—Reps.