| Ala. | Dec 15, 1880
It has been too long settled,, and too often decided by this court, that a discontinuance, without sufficient cause shown, as to one of several defendants who has been served with, process, is a. discontinuance of the entire-action, to be now regarded as an open question.—2 Brick. Dig. 369, § 124; Fennell v. Masterson 43 Ala. 268; Huff v. Davison, 44 Ala, 273; Bachus v. Mickle, 45 Ala. 445" court="Ala." date_filed="1871-01-15" href="https://app.midpage.ai/document/bachus-v-mickle-6507967?utm_source=webapp" opinion_id="6507967">45 Ala. 445; Ex parte Wilson, 54 Ala. 296" court="Ala." date_filed="1875-12-15" href="https://app.midpage.ai/document/ex-parte-wilson-6509280?utm_source=webapp" opinion_id="6509280">54 Ala. 296; Reynolds v. Simpson, at present term.The present suit was brought against two defendants, as comakers of a promissory note. Summons was- issued and served on both. Neither defendant appeared, or pleaded. The plaintiff discontinued his suit as to defendant McKay, and took judgment by default final against Kendall, the other-defendant. The record fails to show any reason for the discontinuance. If, as was shown in Reynolds v. Simpson, McKay had a good personal defense to the action, that would have saved the present judgment. This record shows nothing of the kind; and the consequence is, that the Circuit Court erred in rendering judgment against Kendall.
Fennell v. Masterson, 43 Ala. 268" court="Ala." date_filed="1869-01-15" href="https://app.midpage.ai/document/fennell-v-masterson-6507658?utm_source=webapp" opinion_id="6507658">43 Ala. 268, and Bachus v. Mickle, 45 Ala. 445, are authority for remanding causes in the condition
There was a final judgment in the court below, and from that judgment an appeal lay to this court. The error we have pointed out is apparent on the record, - thus showing appellant had'an adequate remedy by appeal. There was ao ground for mandamus in this case.—2 Brick. Dig. 240, § 4.
Reversed and remanded.