Young v. Brown

Baldwin, J.

This was a suit upon a joint and several promissory note given to plaintiff by one Zoll and the appellant Brown. Zoll and Brown severed in their answer. Zoll pleading usury and Brown alleging that he was merely surety on the note, and also setting up. payment. Plaintiff discontinued as to Zoll, and judgment was rendered against Brown upon the note for the full amount thereof. The note being a joint and several one the plaintiff had a right to sue both or either of the makers thereof as he thought proper, and having elected to sue both and they having answered separately, the plaintiff had the right to discontinue his suit as against one without discharging the others.

The questions presented by appellant’s assignment, as to the right of Brown to have a replication to the sworn answer of Zoll and the effect of such discontinuance upon the pleadings, do not appear to have been presented to the court below. •

Judgment affirmed.