Kendall v. Lassiter , 68 Ala. 181 ( 1880 )

STONE, J.

It has been too long settled,, and too often decided by this court, that a discontinuance, without sufficient cause shown, as to one of several defendants who has been served with, process, is a. discontinuance of the entire-action, to be now regarded as an open question.—2 Brick. Dig. 369, § 124; Fennell v. Masterson 43 Ala. 268; Huff v. Davison, 44 Ala, 273; Bachus v. Mickle, 45 Ala. 445; Ex parte Wilson, 54 Ala. 296; Reynolds v. Simpson, at present term.The present suit was brought against two defendants, as comakers of a promissory note. Summons was- issued and served on both. Neither defendant appeared, or pleaded. The plaintiff discontinued his suit as to defendant McKay, and took judgment by default final against Kendall, the other-defendant. The record fails to show any reason for the discontinuance. If, as was shown in Reynolds v. Simpson, McKay had a good personal defense to the action, that would have saved the present judgment. This record shows nothing of the kind; and the consequence is, that the Circuit Court erred in rendering judgment against Kendall.

Fennell v. Masterson, 43 Ala. 268, and Bachus v. Mickle, 45 Ala. 445, are authority for remanding causes in the condition ibis is ini We will follow that practice. We cannot know what may arise, or be shown, when the ease returns to the Circuit Court.

There was a final judgment in the court below, and from that judgment an appeal lay to this court. The error we have pointed out is apparent on the record, - thus showing appellant had'an adequate remedy by appeal. There was ao ground for mandamus in this case.—2 Brick. Dig. 240, § 4.

Reversed and remanded.