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18 Tex. 31

Cook v. Phillips

Texas Supreme Court

Decided July 1, 1856

Texas Supreme Court · decided 1856-07-01

Error from Travis. Tried below before the Hon. Thomas H. Duval. Suit by defendant in error against plaintiff in error and three others, on a joint and several note, signed by the plaintiff in error and two of his co-defendants, payable to the fourth defendant, and by him indorsed to the defendant in error, the plaintiff below. All the defendants were served with citation.

Key passage — most relied on by later courts

““ That where a defendant need not have been joined, and the liability of the defendants is such that an action can be maintained against the others without joining him, the plaintiff may enter a nolle prosequi as to such defendant, and have Ms judgment against the others.””

quoted by 1 later decision, including Adams v. Addington

Good law ✅— No negative treatment on recordhow we know

Decided 1856-07-01

How this case has been cited

Cited by 6 later decisions — most recently June 1937

5 state decisions

30185618601870188018901900191019201930decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

Wheeler, J.

¶1The principal objection to the judgment, urged by the appellant, is, that the Court permitted the plaintiff to dismiss as to certain of his co-defendants who were served with process, and proceed to judgment against him. In Austin et al v. Jordan, (5 Tex. R. 130,) we held this general principle, as deducible from the authorities, that wherever a defendant need not have been joined, or where it may be desirable to dismiss one of several defendants, and the liability of the defendants is such that an action can be maintained against the other defendants without joining him, the plaintiff may enter & nolle prosequi as to him, and have judgment against the other defendants. And in Martin v. Stone, (16 Tex. R.*) where two men sued upon a joint and several note, and one of them was served and there was no return of the citation issued to the other, we held that the plaintiff was rightly permitted to dismiss as to the latter, though there was no return showing that the defendant had not been served, and take judgment against the defendant, on whom there was a return of service.

¶2On the authority of these cases, the Court did not err in the ruling complained of. The technical rule of the Common Law, that upon a contract which is joint and several, the plaintiff *33must sue all or but one, and cannot sue two or more, without sueing all, has never been recognized in our practice.

¶3The plaintiff having the right to dismiss as to some of the defendants, and proceed to judgment against the others, his having done so, could not afford a ground for setting aside the judgment.

¶4The motion was unsupported by affidavit, or other evidence as to the other ground set forth, and was rightly overruled. There is no error in the judgment, and it is affirmed.

¶5Judgment affirmed.

¶6 This case is quoted by Mr. Justice Wheeler from memory. A case of Martin v. Stone was decided at the session at Galveston, 1856 (which session is reported in the 16th Tex. R.) involving the point to which it is here quoted^ and none other ; decided as here stated. But we find no Opinion, and it does not appear from the minutes that an Opinion was delivered in the case.—Reps.

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