Womsley v. Cummins

Dickinsow, Judge, delivered the opinion of the Court: This is an action of debt, commenced by Cummins against Greenup D. Womsley and one Martha Trimble, alias Patsy Biggs. Under the act of the Legislature regulating the mode of proceeding where there are several defendants, residing in different counties, (See Digest, p. 312,) a counterpart of the writ issued against Womsley in Crawford county, was sent to Washington and served upon Martha Trimble, alias Patsy RiggS. The writs appear to have been regularly served, and at the return term thereof the Court below, upon motion of the plaintiff, quashed the writ issued to Washington county, upon the ground that it was void, for uncertainty appearing on the face of it,"and permitted the plaintiff to proceed against Womsley alone. • Oyer of the writing declared on was craved and granted, and the pleaofm7ü7 debci filed, to which a demurrer was sustained, and judgment thereupon entered in favor of the plaintiff; to reverse which, Womsley assigns various causes of error.' In the investigation of the case we are necessarily led to an examination of the counterpart which was quashed or set aside by the Court. The statute prescribes that in all cases where the obligor or obligors, maker or makers, of any note, bill, bond, or contract, reside in different counties, it shall be lawful for the plaintiff to institute a suit against all or as many of them as he may think proper, and it shall be lav|ful for the Clerk of the Court in which such suit shall be instituted, to make out a separate summons or capias, as the case may be, against the person or persons residing in a different county, directed to the Sheriff of the county or counties where such person or persons reside, and endorse on such writ that it is a counterpart of the writ issued where such suit is commenced. It will be observed that the counterpart is but a separate summons, which the party is permitted to have, to save further- litigation and the accumulation of costs. Upon the service of the process upon the several parties, they stand precisely in the same position as if they were all residents of the same county; it follows then that if the separate summons against Patsy Riggs, alias Martha Trimble, is but a counterpart, it must correspond strictly and in every respect with the writ issued against Womsley, with the exception only that they are directed to different Sheriffs; if there should be a variance, it would not conform to the statute, and could consequently be taken advantage of by the party. In this instance, it appears upon the motion of the plaintiff, the counterpart or separate summons against the defendant in Washington county was quashed for error appearing upon the face of it. That the plaintiff had a right to dismiss his case will be conceded; and though we have been unable to find a case reported in which a party had his own writ quashed, yet we see no reason why he should not be permitted to do so, where there is error, and it operates as a discontinuance, and he can proceed no further in his suit. But in this case, there be-£wo (Jefendants, he appears to have proceeded upon the ground that one summons was good and the other bad, although they are counterparts, and must correspond with each other. The writs against Womslcy and Riggs, alias Trimble, do correspond, and therefore if there is error in one it must consequently extend to the other, and the dismissal or quashing of the process against the former must operate in the same way upon the latter. We are of opinion that the summons issuck to Washington county was erroneous, inasmuch as the place of holding Court was not set forth therein. See McCampbell's Digest, p. 314. The Circuit Court should not have permitted Cummins to proceed any further in his suit, but have dismissed the same with costs. The judgment of the Circuit Court must therefore be reversed and set aside with costs, and further pi^ceedings be had thereon not inconsistent with this opinion. In this case Riwoo, C. /., having been of counsel, did not sit.