Brooks v. Cutler

¶11. Decree: after dismissal. The defendants, in prosecuting their appeal, insist upon two objections to the decree below: ^ First. In setting aside the conveyance to Elizabeth Cutler (formerly Elizabeth Lupton), and subjecting her land to the payment of plaintiff’s judgment, when the record shows that before the trial the plaintiff dismissed his suit as to the said Elizabeth and George Cutler.

¶2The objection is evidently well taken, and the judgment in this particular should be corrected. It would not be a less strange than a dangerous practice to suffer a party, after dismissing his action against a defendant, and getting him out of the way, to go forward and take judgment against him.

¶3The second objection is founded upon the alleged- insufficiency of the evidence to justify the decree entered against Louisa and Edward Clifton. This assumption *435does not command our assent. The evidence, taken as a ■whole, fairly interpreted, will support tbe decree, and the same will be affirmed as it affects Clifton and wife, but reversed as to Elizabeth Cutler and her husband.

¶4The cost of this appeal to be taxed equally to tbe plaintiff and tbe defendants, Edward and Louisa Clifton.

¶5Modified affirmance.