| Tex. | Dec 15, 1849
Was it competent for the plaintiff to discontinue as to one of the makers of the note and take judgment against the indorser?
The 4oth section of the act of 1846, to regulate proceedings in the District Court, (p. 374,) authorizes the plaintiff to discontinue as to a party not served and proceed against those served with process. And the 46th section of the same statute enacts that the principal and the indorser or surety may be joined in the same suit, but declares that “no judgment in any such suit shall be rendered against the indorser or suretjr unless judgment is at the same time rendered against the principal, except where the plaintiff discontinues as to the principal because he resides beyond the limits of the State or because he is insolvent.”
This statutory prohibition is decisive of the present question. It is not averred nor pretended that this case comes within the exception. The indorser •sustained the same relation to Griffeth as to Look. Both were makers and appeared as principals upon the paper. The plaintiff had no more authority to discontinue as to the one than the other, and at the same time proceed against the indorser. But if lie could discontinue as to one, why not as to both, and thus defeat the provision of the statute? Botli makers constituted but one party upon the paper in their relation, to the indorser. As respects their liability to contemporaneous suit and judgment under the statute, they sustained to him the relation of principal; and to this question their liability was indivisible. Tlie suit could not be discontinued as to one of them and judgment after-wards taken against the indorser.
It is also objected that it does not appear that the judgment by default was rendered on or after the fifth day of the term. But. the presumption is that the judgment was legally rendered until the contrary appears.
We are of opinion that the court erred in permitting the plaintiff to discontinue as to one of the makers of the note and take judgment against the indorser, and that for’this error the judgment be reversed and the cause remanded for further proceedings.
Judgment reversed.