The legal question presented by the record is whether a joint promissor, living within the jurisdiction of the Court when the suit is filed, must be sued with the other joint maker.
Suit was brought against both, but' one only was served, by direction of the plaintiff. Upon the trial the defendant objected, and the plaintiff discontinued the suit as to the party not served, and then defendant pleaded the facts in abatement. Plaintiff filed a demurrer to the plea, which the Court sustained, and the plaintiff took judgment.
In our opinion it was error in the Court to have sustained the demurrer to the plea under section 3274 of the Code. The facts pleaded showed there was a joint contractor who lived within the jurisdiction of the Court who had not been served. And the form of the plea was immaterial to the merits of the case. Technicalities in pleading, and subleties of form have been brushed away by the sweep of an enlightened progress in the administration of justice.
Judgment reversed.