Hawkins v. Tinnen
Texas Supreme Court
Error from Red River. The plaintiffs in error were sued, jointly with one James, on a promissory note made hy the plaintiff in error Hawkins, individually, and his co-plaintiff in error Little and James and another as partners, contracting in their firm name. The residence of the defendant James was alleged to be in the Choctaw nation.
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Error from Red River. The plaintiffs in error were sued, jointly with one James, on a promissory note made hy the plaintiff in error Hawkins, individually, and his co-plaintiff in error Little and James and another as partners, contracting in their firm name. The residence of the defendant James was alleged to be in the Choctaw nation. The other defendants having been served with process, and the plaintiff failing to obtain service on James, discontinued as to him, and took judgment against his co-defendant; and on this ground the plaintiffs in error sought to reverse the judgment.
1Opinion of the CourtWheeler, J.
The statute which authorizes a discontinuance as to a defendant not served with process coutains no exception in favor of partners, or others whose liability, by their contract, is joint only. It is so general in its terms as apparently to embrace all cases, aud the creation of a single exception, in favor of indorsers and sureties, favors the conclusion that it was intended to embrace all not included iu the exception. (Hart. Dig., art. 704 ; Williams v. McNiel, 5 Tex. R., 381.) If, however, the authority to discontinue, on the sole ground of the want of service, were doubted, there can be,…
2Cited by1 opinion
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