State Bank v. Roddy , 7 Ark. 766 ( 1852 )

Mr. Justice Walker,

delivered the opinion of the Court.

To the plea of the statute of limitations, the plaintiff replied a former action commenced within the statute bar, a non-suit and the commencement of the present action, upon which issue was taken.

Upon the trial, the plaintiff offered as evidence of the commencement of her first action, the petition and summons issued upon it: but the defendant objected to its introduction for vari-rance, and the circuit court sustained his objection. The only perceivable ground of objection to the record is, that the first action was commenced against other makers of the same note which are not sued in the present action. The defendants in this suit, were, however, parties also to the first suit. As we have repeatedly decided, the question is not whether a joint liability exists against the makers of the note, but whether a former suit was commenced against the defendants in this suit on the same cause of action. In such case, it has been decided that it is no variance that other parties appear to have been sued in the first action not declared against in the second. State Bank v. Magness et al., 6 Eng. 344. State Bank v. Sherrill, 6 Eng. 334. State Bankv. Isaac Gray, decided at the present term. {Ante.)

The circuit court erred in excluding the record as evidence; and for this error the judgment must be reversed, and the cause remanded to be proceeded, in according to law.