Jackson v. Bates , 47 S.C.L. 62 ( 1860 )

The opinion of the Court was delivered by

Wardlaw, J.

The principle involved in this appeal was settled in Hawkins vs. Lewis, 2 N. & McC. 141; followed in White vs. Marshall, MS. Dec. 1821, 2 Rice Dig. 217; and ever since has been recognized in practice. The cases like the present were actions of trespass to try titles, and in the former the motion to strike out the name of one of the plaintiffs was refused by the Judge on circuit and granted by the Court of Appeals notwithstanding his dissent. As to such motions a Circuit Judge may exercise his discretion so far as to prevent surprise and prejudice to the defendants, as by granting a continuance or mulcting the moving party in costs; but it is unreasonable to defeat all the claimants because one fails in proof of his title. It is well settled that, in actions to try titles, some tenants in common may recover their proportional shares of the land -without joining their co-tenants; 2 Bay, 457, 461, 462, 539; 4 McC. 144; and there is little reason in such suits for treating misjoinder more harshly than nonjoinder. Liberality in the procedure of our courts is mating progress, and we are not disposed to compel retreat from any advance safely attained.

Ordered that the appeal be sustained, and that the plaintiffs have leave, upon the payment of costs, to strike out the name of Mary Jackson, and proceed with their suit.

O’Neall, 0. J., concurred. Johnstone, J., absent.

Motion granted.