The opinion of the court was delivered, by
The defendants in this case were sued jointly, and the declaration was upon a joint contract. The case was arbitrated, and an award found against Hartley only, from which he and the plaintiffs took separate appeals. Upon the trial of the cause and before verdict, the plaintiffs moved the court for leave to strike from the record the name of William T. Daugherty, as one of the defendants, which motion was denied, and the court charged the jury “that there being no evidence in this case against William T. Daugherty,” which, upon a careful examination, appears to be correct, “the jury are directed to return a verdict for the defendants.”
There was no mistake alleged as to making Daugherty a defendant, for he was deliberately made a party, and continued as such until the plaintiffs moved to strike out his name on the trial. In the exercise of a proper discretion, where the plaintiffs neither made nor alleged any mistake, and where they had acquired a full knowledge of all the facts at the arbitration, we cannot say in this particular case that the court were wrong in refusing the motion, and this is all we intend to decide.
Judgment affirmed.