DENSON, J. It is a subject of express decision by this court, and we believe it is the universal rule, that in actions of this nature — ex delicto actions — the plaintiff may discontinue as to one or more defendants, and maintain his action against the remaining defendants, without discontinuing the entire action.
Slade v. Street, 656 77 Ala. 576; Montgomery Gas Light Co. v. Montg’y & Eufaula Railway Co., 86 Ala. 372, 5 South. 735, and authorities there cited; Lovelace v. Miller, 150 Ala, 422, 43 South. 735; 6 Ency. Pl. and Pr. 863, 864; 14 Cyc. 411 (F), and authorities cited in notes to the text. This common law rule prevails, notwithstanding the statute (section 42, Code 1896), which authorizes a discontinuance to be entered as to parties defendant who are not served.
It was expressly held in the case cited from 86 Ala. 372, 5 South. 735, that it was not intended by the enactment of this statute to change the rule as applicable to actions ex delicto. But the defendants (appellees) contend that the case of Torrey v. Forbes, 94 Ala. 135, 10 South. 320, is decisive of the question at issue in their favor.
It must be conceded that the fifth paragraph of the opinion does seem to support appellees’ contention; but it will be discovered that what is said in that paragraph on the subject here in judgment was not necessary to the decision of the case. It is dictum; and, even if it were not dictum, it is not in accordance with former well-considered cases determined by this court, and is opposed to the great weight of authority elsewhere. See authorities cited supra.
The case of Torrey v. Forbes, supra, on the point in question, is hereby overruled.
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