Walmsley, Carver & Co. v. Whitfield

Howe, J. This suit was instituted in 1861 upon a claim against dedefendant, Whitfield, for plantation supplies and money loaned, and certain cotton was sequestered. Airey & Colton intervened, claiming-the amount of a debt due them from defendant, of which a part was alleged to bear privilege on the same cotton, and demanding also a judgment against the plaintiffs and the sheriff for the value of the sequestered cotton which they alleged had been unlawfully taken from-the possession- of the warehousemen who held it for intervenors. Plaintiffs answered the intervention, denying the claims of intervenors and their right to intermeddle with the plaintiffs in their pursuit of the defendant. In 1866 the defendant answered plaintiffs’ petition. In 1871 defendant answered the petition of intervenors. At the November term of that year the plaintiffs not appearing to prosecute their suit, the defendant caused them to be called in open court and their “ suit dismissed without prejudice to the rights of the intervenors, and that the intervention he dismissed as in case of nonsuit.” The intervenors appeal, and claim that while the defendant had a right to dismiss the plaintiffs’ suit against himself, he had no right to have the intervention dismissed at the same time, and cites 7 Rob. 10,. and 11 Rob. 314. The defendant, appellee, contends that with the dismissal of the principal suit intervention necessarily fell to the ground, and cites 3 An. 331; 4 An. 279 ; 9 An. 54; 14 An. 426. We are of opinion that the views maintained by appellee are correct- judgment affirmed.