Wheblbb, O. J. —The action was upon a joint and several note, and it was therefore competent for the plaintiff to dismiss as to one of the defendants. Bepeated decisions of this court have settled, that where the cause of action is several, so that suit may be brought against one or more, without joining all who are liable to be sued, the plaintiff may dismiss as to one or more, and proceed to judgment against the other defendants. The answer does not appear to have been brought to the notice of the court.
If judgment was rendered by inadvertence when there was an answer in, the defendant ought to have brought it to the attention of the court by amotion’ to set aside the judgment. He cannot be heard to make the objection in this court, having failed to make it below. (Hopkins v. Donoho, 4 Tex., 336.) Judgment affirmed.