Keithley v. May
| Decision Date | 31 October 1859 |
| Citation | 29 Mo. 220 |
| Parties | KEITHLEY, Defendant in Error, v. May, Plaintiff in Error. |
| Court | Missouri Supreme Court |
1. The discontinuance of an action as to one or more of several defendants in an action on a contract is not a matter entirely at the discretion of the plaintiff, and the courts should not allow it to be done where it will work injustice by depriving a party of a just defence to the action.
2. A. and B. were sued jointly on a promissory note. A. was served personally with process; B. by copy; but the sheriff returned both personally served. They not appearing at the return term, a judgment by default was returned against both. Afterwards and during the term, the sheriff, upon leave given, amended his return, and it then appeared that B. was served by copy. B. moved the court to set aside the judgment by default, and set forth in his affidavit that he had a meritorious defence and its character. The court sustained the motion, and on motion of plaintiff dismissed the suit as to B. and rendered judgment by default against A. Held, that the court improperly exercised its discretion in permitting plaintiff to dismiss his action as to B.
Error to St. Charles Circuit Court.
The facts sufficiently appear in the opinion of the court.
S. S. & D. C. Woods, for plaintiff in error.
Woodson, Edwards & Randolph, for defendant in error.
This case involves the question of the propriety of the conduct of the court below in permitting the plaintiff to dismiss his petition as to the defendant Robert May. Robert and Pinckney May were jointly sued on a promissory note. Pinckney was personally served with the writ, whilst Robert was served by leaving a copy. The sheriff made a return that both defendants had been personally served, and they not appearing on or before the second day of the return term, a judgment by default was taken against them. Afterwards during the term, on motion, leave was given to the sheriff to amend his return, and the amendment having been made, it then appeared that Robert May had not been personally served with process. The court thereupon, on motion of the plaintiff, (the judgment by default having been set aside,) permitted him to dismiss his petition as to the defendant Robert May, and entered a judgment against Pinckney May. Robert May, in an affidavit in support of his motion to set aside the judgment by default against him and for leave to plead, stated that he had a good defence; that the note sued on was executed to William Keithley, the father of the plaintiff; that one Thomas Ward sold and delivered to the defendant a note on the said William Keithley for three hundred dollars before the note sued on was assigned to the plaintiff. It was further stated that the assignment was fraudulent and that William Keithley was wholly insolvent.
From the foregoing statement of facts, it will be observed that this case is not one falling within the provisions...
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...court where it would injuriously affect a defendant in the case, but not otherwise. [Adderton v. Collier, 32 Mo. 507, l. c. 511; Keithley v. May, 29 Mo. 220, l. c. 222; State rel. v. Anderson, supra.] Corpus Juris notes the doctrine (18 C. J. 1150, 1151, 1152), and points out that a plainti......
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Schaetzel v. City of Huron
...NY 307, 4 N.E. 518; De Wolf v. Manufacturing Co., 12 RI 133; Burns v. Reigelsberger, 70 Ind. 522; Peck v. McKellar, 33 Tex. 234; Keithley v. May, 29 Mo. 220; 1 Am. & Eng. Enc. Law, 184g; 5 Am. & Eng. Enc. Law, 676, note 1, holding that a judge at chambers may grant leave to discontinue. In ......