
    Hawkins and another v. Tinnen.
    If, however, the authority to discontinue, (as to a party jointly and not severally liable,) on the sole ground of the want of service, were doubted, there can, we think, be no question of tho further fact that the defendant not served resided beyond the limits of the State, gave that right.
    Error from Red River. The plaintiffs in error were sued, jointly with one James, on a promissory note made hy the plaintiff in error Hawkins, individually, and his co-plaintiff in error Little and James and another as partners, contracting in their firm name. The residence of the defendant James was alleged to be in the Choctaw nation. The other defendants having been served with process, and the plaintiff failing to obtain service on James, discontinued as to him, and took judgment against his co-defendant; and on this ground the plaintiffs in error sought to reverse the judgment.
    
      J. T. Mills, for plaintiffs in error.
    
      W. H. Millwee, for defendant in error.
   Wheeler, J.

The statute which authorizes a discontinuance as to a defendant not served with process coutains no exception in favor of partners, or others whose liability, by their contract, is joint only. It is so general in its terms as apparently to embrace all cases, aud the creation of a single exception, in favor of indorsers and sureties, favors the conclusion that it was intended to embrace all not included iu the exception. (Hart. Dig., art. 704 ; Williams v. McNiel, 5 Tex. R., 381.) If, however, the authority to discontinue, on the sole ground of the want of service, were doubted, there can be, we think, no question that the further fact that the defendant not. served resided beyond the limits of the State, gave that right. (Id.,' arts. 705, 670.)

Judgment affirmed.  