Tindall v. Collins

By Mr. Justice Thornton. This case is brought up by writ of error, from the Circuit Court of Mobile County, to reverse a judgment rendered therein against the plaintiff in error. There are many errors assigned; to any of which, except one, it is unnecessary to advert, as that is decisive of the whole case. The assignment referred18 to, is, of a discontinuance of the cause of aciion by the plaintiff. The suit is brought against the defendant Tindall, and one William Myers, to recover damages for the breach of a written contract, said to have been entered into between the defendant in error, and his deceased partner, Elisha Bebe, of the one part, and the plaintiff in error, and the said Myers of the other; which writing was a contract, for work and labor to be done by the latter, in consideration of a suin of money to be paid in the manner, and at the times specified in the contract, by the former. This instrument is averred to be under the hands of the parties only, and is not a covenant. The writ issued against both the said plaintiff in error and Myers ; and the declaration discontinues the action against Myers, on whom, it is averred, the writ was not served, and complains of the plaintiff in error, as sole defendant. By the common law, a discontinuance as to a party who was, as here, a proper co-defendant to the action, operated as a discontinuance of the whole cause.' The statute of 1818, which authorises a discontinuance where the writ is returned “ not found,” as to one or more of the defendants, embraces only actions upon bonds, covenants, bills, promissory notes, and judgments, neither of which is the contract declared on in this suit.-(See Thompson vs. Saffold, et als.a) The same result would follow, if the defendants in the writ were partners in the matter of the Contract, instead of joint contractors. In that event, there could be no dismissal as to one; for, by the statute above referred to, service on one would be service on both; and the declaration should follow the writ as to the parties. The statute of Jeofails, which is relied upon to cure this defect, has been, at least, constructively decided by this Court, not to do so, éven where a material issue had been tried; (See [19] the case of Adkins and al. vs. Allen,a) But, without that authority, we consider that the error was not cured in this case, by the trial of the issue had in. the Court below, which was on a plea in abatement to the jurisdiction, and did not involve the merits of the case. Let the judgment be reversed. Footnotes [a] 2 Stew. 494. [a] 1 Stew. 130.