
    Tulane and others v. McKee and others.
    It seems that a party is not entitled under all circumstances to amend before announcing himself ready for trial, but that the court has a discretion to refuso amendments which unnecessarily or unreasonably delay the trial or operate to the prejudice of the opposite party.
    Where three were sued as partners, and one denied under oath that he was a partner, or that the instrument sued on was made by him or by his authority, and the answer of his co-dofend.ints contained the same denial, it was held that a dismissal as to the one did not operate as a dismissal-as to the others.
    Seo this case as to the jurisdiction, in personam, of the courts of this State, and as to the practice of the Supreme Court. (Note 03.)
    Appeal from San Augustine. The appellants brought suit against McKee, Buikley and I-Iolt, as acceptors, and Thomas as drawer of a hill of exchange. The x^etition alleged that the acceptors were partners composing the firm of McKee, Buikley & Co., and as such accepted the bill.
    The defendant Holt answered under oath denying the acceptance by him of the hill, and averring that he was not a member of the firm of McKee, Buikley & Go. The defendants McKee and Buikley also answered, and among other matters denied that Holt was a partner in the firm, or that he accepted the bilL jointly with them. They further excepted to the legal sufficiency of the petition for causes which they specially assigned. The several answers were filed on the 18th day of October, 1852. The defendants McKee and Buikley on that and the next day filed motions relating to the process of attachment and garnishment which had been issued in the case. On the 19th of the. same month the plaintiffs amended and discontinued as to the defendant Holt. They also at the same time filed an amended petitiou seeking to obviate thereby the objections to their original petition. The defendants moved to strike out the amended petition, on the ground of surprise, and because it came in too late, the cause having been called for trial, and also' to dismiss the case on account of the discontinuance as to Holt. The court sustained the motion to strike out the xjetition and dismissed the case for the causes assigned in the motion. The plaintiffs brought a writ of error.
    
      Arclrey Sexton, for appellants.
    We think it is clear that a plaintiff is at liberty to permit his suit to abate against any party whenever it is discovered that he is not liable or that he is improperly joined. It may he true that in the strictness of common-law pleading, where “ too many were made defendants “cither may demur, move in arrest of judgment, or support a writ of error; “aud if the objection do not appear on pleadings, the plaintiff maybe nonsuited “if lie fail to prove a joint contract.” (1 Chit. Pi., 50.) Yet this court has said in Austin & Clapp v. Jordan, (5 Tex. B., 134,) that this doctrine “has not “been considered, especially by the American courts, binding as matter of “princiifie, but rather as matter of practice to he governed by considerations of “convenience and policy.’! Wo consider the case of Austin & Clapp «.Jordan as decisive of this case, and hence deem it unnecessary to refer the court to any further authority on the subject. The dismissal of the suit as to Holt only operated as an admission of the truth of his plea, aud. left other parties before the court who had appeared and pleaded to the merits; and as to them the suit was properly brought and should have gone to trial.
    The suit was by attachment, and the piroperty gave, the court jurisdiction, to which however no exception was made.
    The court is referred to Hartness «. Thompson, 5 Johns. B., 100, and to 1 Pick. K„ 500.
    
      Roberts %• Lewis, for appellees.
    The plaintiffs in error brought a joint suit against McKee, Buikley & Co., as acceptors of James H. Thomas’ draft, and against James N. Thomas as drawer, alleging that one James Holt composed the other [387] part of the firm of McKee, Buikley & Co. All were served. James Holt appeared and pleaded non est factum, and at the time of trial plaintiffs entered a nolle prosequi as to James Holt, who had heen alleged as composing part of the commercial firm of McKee, Bulklcy & Oo. Defendants moved to dismiss the whole case, which motion was sustained.
    This raises tlie question: if three enter into a joint contract in the acceptance of a hill and are jointly sued, and all come in and plead, one pleads non est factum, and anolle prosequi is entered to him, does it not operate as a dismissal to all? By the common law it certainly would, and I know of no statute to tlie contrary. Tlie pleadings in this case show the contract to he joint, and if the party to whom the nolle prosequi was entered had appeared from the evidence to llave heen an immaterial part}' — a feme covert or infant — then a discontinuance as to such party might not have heen a dismissal to all. But when the pleadings show the contractors to be joint contractors, jointly interested, (which was the only evidence in this case at the time the nolle prosequi was entered) then the dismissal of one was the discharge of all.
    Tlie rule of law appears to be this: if from the nature of the contract the parties have to be jointly sued, then no dismissal can be made as to one of the parties.
    This was a joint acceptance, and if the nolle prosequi which was entered as to Holt did not also dismiss tlie other parties, then by the same rule of law suit might have been maintained against eacli party separately. In this case Holt appears from the pleadings to be. a material party and jointly liable, under no disability, and consequently could not be released without dismissing all, which was correctly held by the court below, as will appear from Jordan v. Austin & Clapp, (a Tex. B,., 131,) which holds that a party who is improperly joined, or under some disability, may be dismissed.
   Wheeler, J.

The objection that tlie amended petition came too late would seem to have been entitled to more favor had not the answer of the defendants been obnoxious to the same objection. It was tiled on the preceding day; and on that and the day of trial the defendants iiled several motions." The answer and motions urged a multiplicity of exceptions and objections to the sufficiency of the petition and the regularity of the proceedings. Tlie defendants having reserved their objections till so late a moment, and having thus urged them upon the eve of the trial, ought not, it would seem, to have been heard with favor to object that the amended petition which sought to answer and obviate their objections came too late because not filed until tlie calling of the cause.

The amendment offered did not change the issues of fact. It very needlessly reiterated the matters contained in the original petition, but introduced no new matter presenting any issue of fact, or requiring to be supported or repelled by proof. It simply sought to obviate an objection taken to the jurisdiction of the court by averring that one Wood, who had been summoned as garnishee, and who resided in that county, was indebted to the defendants. The objection, therefore, that the amendment took the defendants by surprise was manifestly frivolous and uufounded.

The court must have a discretion to refuse amendments which unnecessarily or unreasonably delay the trial or operate to the prejudice of Ihe opposite part}'. But such does not appear to have been the effect of the amendment in this instance.

The discontinuance as to the defendant Holt afforded nog round for dismissing the ease. By his pleas and the admissions of his co-defendants, McKee and Bnllcley, he was not a joint contractor with them, and was, therefore, improperly joined in the action. Tlie case comes clearly within the principle determined in the ease of Austin & Clapp v. Jordan. (5 Tex. R., 130.) It was tlie rlghtof the plaintiff to discontinue as to the defendant Holt, and proceed against tlie other defendants. It was error, therefore, to dismiss the case on account of the discontinuance; and this is the only ground now relied on in support of the judgment.

But the. record presents other grounds for dismissing- the case, taken hy exceptions and motions in the court below, which'authorized the judgment of dismissal, and which therefore will require its affirmance.

Ir appears from the petition that all the parties to the suit except the defendant Tilomas were non-residents of the State, and that at the commencement of the suit lie resided in the county of Cherokee, and yet this suit is brought in llie county of San Augustine. There is no averment that Ihe nonresident defendants had property or effects of any kind within tiie jurisdiction of the court, nor does the petition pray an attachment. The residence of tiie defendant Thomas in the State is the only fact appearing- in the petition to give the court jurisdiction, and he was not sued in the county of his residence'nor legally served with process, the citation to him being- returned “served by “reading.” He might have appeared and submitted to tiie jurisdiction of tiie court, hut he did not, and there was no authority, without legal service, to proceed to judgment against him. An attachment and writ of garnishment had been issued upon and tiled contemporaneously with the petition. But, if the process of attachment could legally have issued without a prayer to (hat effect in the petition, there was a motion to dismiss for the want of a sufficient bond, and the bond was insufficient in not containing (he proper names of tiie parties, plaintiff and defendant, in tiie attachment. (Hart. Dig., art. 14.) Tiie attachment therefore must have been dismissed, and with it'the writ of garnishment. There was no attempt or offer to perfect service on the defendant Tilomas. Such was the position of the ease when it was called for trial. The amendment then offered averred no fact as having- existed at the time of bringing- the suit to give (lie court jurisdiction, and the want of it was one of the grounds of exception to the petition. The court could not proceed to judgment against the defendant Tilomas without service, nor upon (lie subject-matter of the attachment and garnishment. These being defective and invalid, and all the other parties to the suit being non-resident, there was nothing to which the jurisdiction of the court could attach. The ease was therefore rightfully dismissed, and tiie judgment is affirmed.

Judgment affirmed.

Noth 63. — If both parties resido without the limits of this State, our courts have jurisdiction of the action where the defendant has property or rights and credits within tins State, and tile plain tiff seeks to subject them to the payment of his demand, or claims some right respecting such property, or rights and credits. (Ward v. Lathrop, 11 T., 287.) When the plaintiff is a resident of this State, it is not essential to tiie jurisdiction of tlio court, in an action in per-sonam, that the defendant should resido or have property in this State, nor, it seems, that the cause of action should have arisen therein. (Butterworth v. Kinsey, 14 T., 495: Mickie v. McGehee, 27 T., 134.)  