
    Moore v. Janes.
    The plaintiff in a suit on a promissory note against the makers and an indorser or guarantor cannot discontinue as to onoof the makers and proceed against the indorser or guarantor unless lie shows that the maker as to whom he seeks to discontinuo resides beyond the limits of tho State or in a county not organized, or is insolvent.
    An answer may be filed at any time before a final judgment by default is asked.
    Tiie eases of Look and another v. Henderson (4 Tex. R., 303) and Wheat a. Davidson (2 Id.. 100) cited and approved; the case of l>elty v. Cleveland (2 Id., 401) cited, explained, and approved.
    Error from Bowie. The defendant in error sued McLoskey, Rames, and Moore on a promissory note made payable to him by McLoskey and Rames, and guaranteed after its maturity by Moore. Service was acknowledged by McLoskey, and process ivas returned served on Moore, and as to Rames, not found in 'ibe county. The plaintiff discontinued as to Rames, and took judgment by default against the other defendants. On t.lie fifth day of tiie term, before the meeting of the court, Moore, by counsel, filed an answer going- to the merits of Iho suit, and tiie plaintiff moved to strike it out on the ground that it had been filed too late, which motion was sustained, and judgment by default entered up against the said defendants.
    
      J. IF. Elicit, for plaintiff in error.
   Lipscomb, J.

The plaintiff in error assigns two grounds of error on which he asks a reversal of the judgment of the court below:

1st. That there is error in discontinuing as to one of (lie makers of the note without having shown that lie resided without the limits of the State or was insolvent.

2d. The court below erred in striking out the answer of the defendant.

The point presented by the first assignment was directly decided by this court in tiie case of Look et al. v. Henderson, (4 Tex. R., 303,) and we held that under our statute (Hart. Dig., art. 670) it was not, competputfor tiie plaintiff to discontinue as to one of the makers when there was an indorser or guarantor on the note unless the plaintiff' showed that such party as to whom he sought to discontinue ills suit resided without tiie limits of the State or in a depopulated county, or was insolvent. It does not appear that the party came within either of these exceptions in the case before us. The court below erred therefore in permitting the discontinuance as to Rames.

The point presented by the second assignment of error was decided by tills court in tiie case of Wheat v. Davidson, (2 Tex. R., 196.) And it was i-tiled that if the answer was filed at anytime before a final judgment by default was asked, it ought to be received, and that its rejection, if so offered, would furnish sufficient ground for reversing the judgment.

Wo have no disposition to disturb either of the decisions referred to.

The case of Look and another v. Henderson, cited above, is not repugnant to tiie decision of the court in Petty v. Cleveland. (2 Tex. R., 404.) This case was decided mainly on tho ground that, tiie security, Petty, liad relied on another defense, and did not ask tiie opinion of the court, nor was there, any decision on Ills rights as a security. It was therefore considered as having been waived by him. On the fullest consideration we are satisfied that the case of Look et al. v. Henderson was correctly decided. The judgment of the court below is reversed and the cause remanded.

Judgment reversed.  