SADLER et al. vs HOUSTON & GILLESPIE, 5 Stew. & P. 205

LIPSCOMB, C. J. Houston & Gillespie, assignees of Ann P. Rossell, brought the suit, in the Circuit Court of the Comity of Blount, against Isaac Sadler, and Mary Sadler. Service of the writ was effected on both the defendants. There does not appear to have been any appearance, unless we can infer the presence of the defendants from the manner, in 'which the clerk has entered the judgment. The case is first stated, of Houston & Gillespie, against both the defendants.

Me then goes on to say, that the parties appeared by their attornies, and the said plaintiffs dismissed his suit, as against the said Mary Sadler ; and the said defendant saith nothing in bar,- the.; concluding a judgment of nihil dicit in the usual form. The error assigned, is in the entering up judgment against one, only, after having discontinued, as to the other defendant, who had been in Court, as co-defendant. That such a discontinuance is error, and fatal, has been ruled, by a series of decisions in this Court; and it will be only necessary to refer to those cases.

The case of Smith & Hill vs Cobb; Adkins vs Allen; Brahan vs Johnson; Roberts vs Johnson; Thomp son vs Saffold et al. The principle is acknowledged in all of these cases; and we are fully satisfied of its soundness. I will only remark, that the case of Roberts vs Johnson, (reported, in 2d Stewart,) was one of marked features; and the decision of the Court might well have been rested on the peculiar circumstances, if there had been no more solid basis to rest it on.

In truth, the case was decided, on the ground, that service had never been effected on the other defendant : and, the plaintiff was authorised to discontinue, as to him, by the act of 1818.

But, in giving the opinion of the Court, I made some remarks, on. the prominent and extrordinary features it presented, that, in my opinion, would have saved the judgment, even if the other defendant, as to whom the suit was discontinued, had been served with process. ’ In that case, after the discontinuance, judgment by default was entered, which was opened by the defendant, on affidavit of merits; but he then declined pleading, but secured a continuance — and, at the next term suffered a judgment by default, again to be entered up, for want of a plea. This, to me, had the appearance of trifling with the Court.

The judgment must be reversed. THORNTON. J, not sitting. 1 Stew.62. 1 Ib. 130. 1 Ib. 189. b 2 Ib. 13. 2 Ib 494,