
    Harris et al. v. Duckworth.
    [69 South. 219.]
    Dismissal and Nonsuit. Effect of dismissal.
    
    "Where in a suit against two defendants a formal dismissal is had as to one of the defendants before the jury retires, a verdict and judgment cannot be entered against such defendant.
    Appeal from the circuit court of Covington county.
    Hon. D. A. McIntosh, Special Judge.
    Suit by A. C. Duckworth against W. H, Harris and Covington county.
    From a judgment for plaintiff, defendants appeal.
    The facts are these: Harris had entered into a contract with the county of Covington for the construction of a public road, and in the course of its performance he sublet a portion of the work to Duckworth'. Duckworth and Harris disagreed as to whether the work done by the former had been performed in accordance with the specifications provided in the contract between Harris and the county, and Harris refused to 'pay Duckworth therefor. Thereupon Duckworth sued both Harris and the county, claiming that the county was liable to him because it had not fully paid Harris. At the conclusion of the evidence a judgment in favor of the county, on motion of its attorney, was granted; there having been no proof whatever which even tended to show the county liable to Duckworth. The issue between Duckworth, the plaintiff, and Harris, was submitted to a jury, who returned a verdict in plaintiff’s favor, not only against Harris, but as well against the county, and a judgment was rendered thereon against both defendants, and both defendants appealed to the supreme court.
    
      E. L. Dent, for appellant.
    
      Watkins é Watkins, for appellee.
   Smith, C. J.,

delivered the opinion of the court.

No judgment should have been rendered against the county of Covington in the court below, not only because the county had been formally dismissed as a party defendant,- but for the further reason that the evidence disclosed no liability on its part.

The judgment of the court below is reversed, and the cause dismissed, in so far as it affects the county. In all other respects the judgment is affirmed, and will remain in full force and effect.

Affirmed.  