Tulane v. Mckee

• Decision Date: 01 January 1853
• Citation: 10 Tex. 335
• Parties: TULANE AND OTHERS v. MCKEE AND OTHERS.
• Court: Texas Supreme Court

10 Tex. 335

TULANE AND OTHERS

v.MCKEE AND OTHERS.

Supreme Court of Texas.

1853.

It seems that a party is not entitled under all circumstances to amend before announcing himself ready for trial, but that the court has a discretion to refuse amendments which unnecessarily or unreasonably delay the trial or operate to the prejudice of the opposite party.

Where three were sued as partners, and one denied under oath that he was a partner, or that the instrument sued on was made by him or by his authority, and the answer of his co-defendants contained the same denial, it was held that a dismissal as to the one did not operate as a dismissal as to the others.

See this case as to the jurisdiction, in personam, of the courts of this State, and as to the practice of the Supreme Court.(Note 63.)

Appeal from San Augustine.The appellants brought suit against McKee, Bulkley and Holt, as acceptors, and Thomas as drawer of a bill of exchange.The petition alleged that the acceptors were partners composing the firm of McKee, Bulkley & Co., and as such accepted the bill.

The defendant Holt answered under oath denying the acceptance by him of the bill, and averring that he was not a member of the firm of McKee, Bulkley & Co.The defendants McKee and Bulkley also answered, and among other matters denied that Holt was a partner in the firm, or that he accepted the bill jointly with them.They further excepted to the legal sufficiency of the petition for causes which they specially assigned.The several answers were filed on the 18th day of October, 1852.The defendants McKee and Bulkley on that and the next day filed motions relating to the process of attachment and garnishment which had been issued in the case.On the 19th of the same month the plaintiffs amended and discontinued as to the defendant Holt.They also at the same time filed an amended petition seeking to obviate thereby the objections to their original petition.The defendants moved to strike out the amended petition, on the ground of surprise, and because it came in too late, the cause having been called for trial, and also to dismiss the case on account of the discontinuance as to Holt.The court sustained the motion to strike out the petition and dismissed the case for the causes assigned in the motion.The plaintiffs brought a writ of error.

Ardrey & Sexton, for appellants.We think it is clear that a plaintiff is at liberty to permit his suit to abate against any party whenever it is discovered that he is not liable or that he is improperly joined.It may be true that in the strictness of common-law pleading, where “too many were made defendants either may demur, move in arrest of judgment, or support a writ of error; and if the objection do not appear on pleadings, the plaintiff may be nonsuited if he fail to prove a joint contract.”(1 Chit. Pl., 50.)Yet this court has said in Austin & Clapp v. Jordan, (5 Tex. R., 134,) that this doctrine “has not been considered, especially by the American courts, binding as matter of principle, but rather as matter of practice to be governed by considerations of convenience and policy.”We consider the case of Austin & Clapp v. Jordan as decisive of this case, and hence deem it unnecessary to refer the court to any further authority on the subject.The dismissal of the suit as to Holt only operated as an admission of the truth of his plea, and left other parties before the court who had appeared and pleaded to the merits; and as to them the suit was properly brought and should have gone to trial.

The suit was by attachment, and the property gave the court jurisdiction, to which however no exception was made.

The court is referred to Hartness v. Thompson, 5 Johns. R., 160, and to 1 Pick. R., 500.

Roberts & Lewis, for appellees.The plaintiffs in error brought a joint suit against McKee, Bulkley & Co., as acceptors of James N. Thomas' draft, and against James N. Thomas as drawer, alleging that one James Holt composed the other part of the firm of McKee, Bulkley & Co.All were served.James Holt appeared and pleaded non est factum, and at the time of trial plaintiffs entered a nolle prosequi as to James Holt, who had been alleged as composing part of the commercial firm of McKee, Bulkley & Co.Defendants moved to dismiss the whole case, which motion was sustained.

This raises the question: if three enter into a joint contract in the acceptance of a bill and are jointly sued, and all come in and plead, one pleads non est factum, and a nolle prosequi is entered to him, does it not operate as a dismissal to all?By the common law it certainly would, and I know of no statute to the contrary.The pleadings in this case show the contract to be joint, and if the party to whom the nolle prosequi was entered had appeared from the evidence to have been an immaterial party--a feme covert or infant-- then a discontinuance as to such party might not have been a dismissal to all.But when the pleadings show the contractors to be joint contractors, jointly interested, (which was the only evidence in this case at the time the nolle prosequi was entered) then the dismissal of one was the discharge of all.

The rule of law appears to be this: if from the nature of the contract the parties have to be jointly sued, then no dismissal can be made as to one of the parties.

This was a joint acceptance, and if the nolle prosequi which was entered as to Holt did not also dismiss the other parties, then by the same rule of law suit might have been maintained against each party separately.In this...