Burnett vs. Menifee, 4 Ark. 140

By the Court, Dickinson, J. It was error for the Court below to give final judgment against the plaintiff, as was decided in the case of Hartley vs. Tunstall et. al., 3 Ark. Rep. 125. This judgment, both in form and substance, as the Court remarked in that case, is in bar of the action, and wholly unauthorized. Besides, there is error in quashing the writ, because it was joint, and only executed upon one.

The statute regulating the proceedings in such cases, gives to the plaintiff the right of issuing separate writs, where the defendants reside in different counties; but it certainly does not abridge the right of issuing a joint writ, in the same county in which the suit was commenced. He may take his writ against both; and, if not executed in time, or not executed at all, he may either discontinue as to the defendant upon whom there has been no service, and proceed to judgment against him upon whom there was service; or he may continue the case to the next term, for service.

In this instance, he chose to pursue the first remedy, which he was fully authorized to do. Judgment reversed.