Prewett v. Caruthers , 8 Miss. 304 ( 1843 )

Opinion by

Turner, Justice.

This was an action on the case, founded on a promissory note, made by the defendants, payable to the plaintiff. Judgment by default final was taken as to two of the defendants, who filed no plea; and at a subsequent term, the cause having been continued, and the other defendants having been served, pleaded issuable pleas. They moved the court to discontinue the cause as to them, inasmuch as the plaintiff had previously taken judgment by default final against the other two, and the court sustained the motion. The plaintiff moved the court to set aside the order of discontinuance; but the court overruled the motion, and for this error the plaintiff seeks to reverse the judgment.

It was irregular to enter a final judgment against part of the defendants, without disposing of the cause against the others. See 2 Howard, 805. It seems that the plaintiff did not intend to take a final judgment, as he continued the cause; and it was equally irregular to discontinue as to the other two defendants on their motion. For these irregularities the judgment is reversed, and the cause remanded for further proceedings. It was regular to take judgment by default, against those who did not plead; but the judgment should not have been finally entered, until the cause was ready for final disposition as to all.

Judgment reversed, and cause remanded for further proceedings.