Hanly vs. The Real Estate Bank, 4 Ark. 598

By the Court, Ringo, C. J. In respect to the discontinuance, it has been repeatedly decided by this court, that a discontinuance as to one defendant, who was du y served with process in time to bind him to appear and answer the action, or subject him to the legal consequences of a judgment by d ifault, upon his failure to do so, would operate as a discontinuance of the whole action; and such, we consider, would have been the legal effect, in this case, if the plaintiff in error had relied upon it, and done no act, subsequently, amounting to a waiver of this objection.

This he did not do; but, after the discon, tinuance as to his co-defendant, came voluntarily into court, and entered his appearance to, and defended the action, by praying oyer of the writing sued on, and demurring to the declaration, as he had an unquestionable legal right to do, though he was under no legal obligation whatever, to appear, and no valid judgment could have been given against him, if he had made default.

Under these circumstances, he must be regarded as having expressly waived on the record, all objections to the discontinuance, and assented to its proceeding against him alone; and therefore the case, as to him, must be' considered as though he had been separately sued, and had voluntarily appeared to the action, without process. Consequently, the court below did not err in proceeding in the cause against him, notwithstanding the discontinuance as to his co-defendant. The judgment upon the demurrer was, in our opinion, manifestly wrong.

The declaration set out, as the foundation of the action, a promissory note, in writing, bearing date on the 11th day of March, 1841. The note given on oyer bears no date whatever, and therefore docs not support the action, but shows a distinct cause of action, different from the one sued on; and, as the plaintiff was bound to show, on oyer, the instrument sued on, or one corresponding with the allegations in her declaration, and the variance between the two, that is, between the rate described in the declaration and that of which oyer was given, being speedily assigned as a ground of demurrer.

The Jaw consideres the failure to do so as a fatal defect in the pleading; or, in other words, as a failure, on the part of the plaintiff, to show, legally, any cause of action whatever, against the defendant.

And the objection, that it forms no part of the record, because it is not set out in the defendant’s pleading, is untenable; because, when the instrument, or a copy of it, is filed, on the granting of oyer, it becomes as much a part of the record as if copied into the pleading; and the party so fifing it loses his control over it, and can never afterwards take it from the files without the leave of the court. Judgment reversed.