Rutherford v. Harris ( 1858 )

Roberts, J.

Harris brought suit against Atkinson, as the maker, and Rutherford and Thompson, as the endorsers of a promissory note, which was executed by Atkinson, in favor of Rutherford and Thompson, and by them assigned to Harris. Atkinson filed an answer, and the other defendants did not. Upon the trial, a judgment was rendered in favor of Harris, against all the defendants, and in favor of Atkinson, against Thompson, on an obligation of indemnity; both being for the amount due on the note. Atkinson moved for a new trial, which was granted, as to him only. Whereupon the plaintiff below, Harris, dismissed his suit as to Atkinson, and the court ordered execution to issue on the judgment rendered against Rutherford and Thompson.

There was no allegation in the pleadings, that Atkinson, the principal, and the maker of the note, resided beyond the limits of the State, or in a county not organized, or was insolvent. Nor was there any other fact alleged or shown, which placed Rutherford and Thompson in any other relation towards Harris, than that of endorsers. The discontinuance of the suit, then, as to Atkinson, was in direct violation of the statute. (Hart. Dig. Art. 670, 705.) This question was decided in the case of Cook & Cornelius v. Henderson, 18 Tex. Rep. 303. The judgment of Atkinson against Thompson, was dependent upon that of Harris against Atkinson; and the latter being set aside, left no foundation for the former. Judgment is reversed, and cause remanded.

Reversed and remanded.