8 Tex. 124 | Tex. | 1852
It is believed that it would have been competent for the plaintiff in tiie court below to have entered a discontinuance as to Houston, on whom there liad been no service, and proceeded against tiie other two defendants. And till», we believe, was in effect done by tiie two parties going to trial, i. e., the two defendants, James and Tucker, it was, however, these two defendants and not Houston who so went to trial. The verdict of the jury was-against them, and it did not include Houston, just as it would have been if a discontinuance had been spread upon the record. Tiie judgment, however, was not authorized and supported by the verdict. By a mistake of tiie clerk it is supposed it was rendered against Houston, who was not before the jury nor embraced by their verdict. The judgment must lie reformed and reversed as-to Houston and rendered against James and Tucker, tiie other defendants.
Ordered accordingly.
