Trigg v. Christmill

OPINION of the Court, by

Judge Owsiey.

This was a joint action, brought by Christmill against Trigg, Price and Smiley, upon a joint and several obligation. The process w as returned executed as to Trigg and Smiley, but as to Price it was returned “ not found,” and upon calling of the cause, and it being shown to the court that Smiley had not been discharged sixty days from the service of the United States in the militia, when the process was served upon him, ordered the suit as to him and Price tobe discontinued j and Trigg failing to make any defence, as to him judgment was taken fey default.

The judgment against Trigg cannot be sustained. The action being joint, unless sufficient reason was shown for abating the cause as to the other defendants, according to the settled doctrine of this court judgment could not regularly be entered against Trigg alone.

The record certainly shows no reason for discontinuing the cause either as to Price or Smiley. As to Price there is not even a suggestion why it was discontinued, and with respect to Smiley his not having been discharged from the service sixty days when, the process was served, although that circumstance, under the act of 1814, made the service irregular, it could not justify a discontinuance.

The judgment must be reversed with costs, the cause remanded and the order discontinuing the action as to Price and Smiley set aside, and such further proceedings there liad as may be consistent with this opinion.