TEXAS & P. RY. CO. v. SHEFTALL et al., 133 F. 722

After stating the case as above, McCORMICK, Circuit Judge, delivered the opinion of the court. Twenty-one errors are assigned. We do not deem it necessary or profitable to discuss them separately, or at all at any length, for we consider that none of them are well taken. Seventeen of them are expressly directed to the action of the court in giving instructions excepted to by the plaintiff in error and in refusing the requested charges presented by the plaintiff in error. Another of the errors assigned is substantially directed at similar action of the court in refusing to direct a verdict for the defendant.

The eighteenth, nineteenth, and twentieth errors assigned are addressed to the action of the court in granting a new trial as to the Cotton Belt Company, and in permitting the plaintiff to discontinue his suit against that company, and in holding the judgment against the plaintiff in error alone. We have examined the cases relied on by the plaintiff in error, namely, Washington Gaslight Company v. Landsden, 172 U. S. 543, 19 Sup. Ct. 296, 43 L. Ed. 543; Albright v. McTighe et al. (C. C.) 49 Fed. 817; Strand v. Griffin (C. C.) 109 Fed. 597; Levy et al. v. Gill (Tex. Civ. App.) 46 S. W. 84; Hume et al. v.

Schintz (Tex. Civ. App.) 40 S. W. 1067; Schintz v. Morris (Tex. Civ. App.) 35 S. W. 516; San Antonio v. Dickman, 34 Tex. 650— and are of the opinion that they do not support the contention of the plaintiff in error in these last-named three assignments. The defendants answered separately. They did not seek relief against each other. There was nothing in the joining of the defendants that tended to enhance the damages which could be recovered in the plaintiff’s case.

There was nothing in the nature of that case that would call upon the jury to find a greater verdict against two than the testimony compelled them to find against one if one alone had been sued. If, as the trial judge seems to have concluded, the Cotton Belt had been improperly joined, and therefore was not a necessary party, or should not have been a party at all, the dismissing of the suit against it could not discharge the plaintiff’s claim against the other defendant, if it were otherwise liable.

There is nothing in the contention that the motion discontinuing the suit as to the Cotton Belt came too late after verdict and judgment entered. The case was entirely in the control of the trial judge pending the term, and at the time his action was taken. We think these views are fully supported by Minor v. Mechanics’ Bank, 26 U. S. 74, 7 L. Ed. 47; United States v. Linn, 42 U. S. 103, 11 L. Ed. 64; Gaslight Co. v. Montgomery, 86 Ala. 372, 5 South. 735; Railway Co. v. Ross, 142 Ill. 9, 31 N. E. 412, 34 Am. St. Rep. 49; Miller v. Sullivan, 89 Tex. 408, 35 S. W. 362. The judgment of the Circuit Court is affirmed.