29 Mo. 220 | Mo. | 1859
delivered the opinion of the court.
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.
From the foregoing statement of facts, it will be observed that this case is not one falling within the provisions of the nineteenth section of the fifth article of the practice act prescribing the circumstances under which a plaintiff may dismiss his petition as to some of the defendants. The defendant Robert May was regularly served with process, and appeared and desired to defend the action, but because he had been served in such a way as entitled him to have the trial of the cause postponed until the next term, the plaintiff, in order to prevent this, discontinued as to him and took a judgment against the other defendant.
As the court had no warrant in the statute law to support the course adopted, its action must look to the common law for principles by which it may' be sustained. ' In actions of tort at common law the plaintiff could enter a nolle prose-qui as to one or more of the defendants. Our statute makes