30 Mo. 353 | Mo. | 1860
delivered the opinion of the court.
We can not see any ground on which the action of the court below can be sustained. It is a great mistake to suppose that a plaintiff can bring in and dismiss parties at his discretion. This power,is very much abused under the present practice act. A defendant is brought in by the plaintiff, who, he finds, is a little too hard for him, and who, he sees, may defeat his action, and he will rid himself of the difficulty by dismissing his suit as to such defendant. We had occasion, in the case of May v. Keithley, 29 Mo. 220, to remark upon this practice, and point out the evils which may flow from it. No nolle prosequi or dismissal of a party ought to be allowed when it will produce any derangement in the rights of the defendants, deprive them of a legal defence, or subject them to increased difficulties or liabilities.
Browning was a proper party to the suit, as his being so would enable the court to do complete justice among the parties. The books say that there may be a decree against one defendant in favor of a co-defendant. If Browning committed a fraud on Dickerson by conveying to him land for a ■
Browning’s was a warranty deed. Dickerson having failed to recover the lot conveyed by Browning, from that failure a right of action results to him against Browning to recover damages for his breach of warranty. Browning is then affected by the decree. It is true he might have shown in an action on the covenant, had he been no party to the suit, that Dickerson, although he had lost his land as against Chris-man, yet had no cause of action against him. But Browning was brought in by Olirisman himself, and he had a right to make a defence to Chrisman’s action. Chrisman has taken a decree against him without notice, but by publication alone. The statute gives Browning a right now to come in and plead to the original action, and there was no power in the court below to deprive him of this right.
The judgment will be reversed and the cause remanded.