
    William S. Read et al. vs. William G. Renaud et al.
    Where the payee of a joint note, the makers of which reside in different counties, sues them all in a joint action in the county wrhere one of them lived, and by writs to the different counties brings them all before the court of the county where the suit is instituted; and the maker residing in that county pleads to the action while the others make default, the holder of the note may discontinue his suit as to that maker and may take judgment by default final against the others.
    A court having once acquired jurisdiction, does not lose it by any change of circumstances.
    In error from the Jefferson circuit court; Hon. C. O. Cage, judge.
    William G. Renaud and David Grissom, for the use of L. W. Baldwin, brought suit to the November term, 1841, of the Jefferson circuit court, against William S. Read, John G. Fleming, and Philip O. Hughes, upon their joint and several promissory notes payable to the said Renaud and Grissom. A capias was issued to Jefferson county and regularly executed on Hughes, and a duplicate to Adams county, which was executed on Read and Fleming.
    Hughes pleaded to the action, and Read and Fleming made default. The plaintiffs dismissed the suit as to Hughes, and took judgment by default against Read and Fleming, with stay of execution six months. From this judgment Read and Fleming prosecute their writ of error.
    
      Sanders and Price, for plaintiffs in error.
    It sufficiently appears that the judgment in this case is not. rendered against any party over whom the court had jurisdiction, the only resident defendant, Hughes, was served with process in Jefferson county; he appeared and plead, the plaintiff without joining issue on the plea dismissed by his own motion the cause as to Hughes. Thus by his own act he ousted the circuit court of its jurisdiction as to the other defendants; had they appeared and plead to the action, thereby waiving the question of jurisdiction, it might perhaps be otherwise; but as the record stands, the judgment is against two defendants, over whom, as shown by the record itself, the court had no jurisdiction.
    This question has been fully settled in the state of Kentucky. (See Brown v. McKee, 1 J. J. Marshall, 474, and authorities there cited; Parish v. Oldham, 3 J. J. Marshall, 546 ; Rogers v. Hagan, 6 J. J. Marshall, 578; Cowan v. Montgomery, 7 J. J. Marshal], 299.) And we consider conclusively so by this court, in the case of Bank of Vicksburg v. Jennings, 5 How. R. 425; from which we insist that the judgment of the circuit court be reversed, and that this court render judgment dismissing said cause for want of jurisdiction, or that the same be remanded to the court below with instructions to that effect.
    
      John B. Coleman, for defendant in error.
    It is supposed that the plaintiffs in error expect to reverse this judgment upon the ground that when the suit was discontinued as to Hughes, the defendant, who resided in Jefferson county, the circuit court of that county thereby lost its jurisdiction over the other defendants.
    This position is untenable, and is at war with the well settled principle that when a court once legally takes jurisdiction, it is entitled to retain it, though the circumstances under which its jurisdiction in the first place accrued, may have changed or ceased to exist. 4 Cowen, 717; 2 Wheaton, 290; 2 Peters, 157.; 9 Ibid, 413; 8 Ibid, 40; 9 Ibid, 224.
    “ The jurisdiction of the circuit court of the United States, having once vested between citizens of different states, cannot be divested by the change of domicil of one of the parties, and his removal into the same state with the adverse party, pendente lite.” Morgan’s Heirs v. Morgan et al. 2 Wheaton, 290. Hughes was a citizen of Jefferson county; process was regularly exécuted upon him by the sheriff of that county. The jurisdiction of the circuit court was then complete under the statute, and the issuance of duplicate writs against the defendant, who resided in another county, was legal. How. & Hutch. 578, sec. 9. Would the death of Hughes, after service of process upon him and the other defendants, have abated the suit 1 Assuredly not. It would have survived against his co-makers, Read and Fleming. How. & Hutch. 578, sec. 8. Its discontinuance as to Hughes could produce no greater effect upon the jurisdiction of the court than his death would have done.
    We are aware that the Kentucky decisions hold a contrary doctrine, but they can have no weight in the determination of this question, as they are entirely based upon a statute of that state, which provides “ that in every species of personal actions, where there are more than one defendant, the plaintiff commencing <his action in the county where either of them reside, may issue any writ or writs to any county where the defendants or any of them may be found; provided that should a verdict not be found against the defendant or defendants resident in the county where the action is commenced, judgment shall not be rendered in such action.” 1 Brown & M. Ky. Dig. 343.
   Mr. Justice Clayton

delivered the opinion of the court.

The defendants in error brought a suit in the county of Jefferson against Philip O. Hughes, whoresided in that county, and against William S. Read, and John G. Fleming who resided in the county of Adams. A writ and counterpart were issued, which were executed on all the parties. Hughes appeared and filed a plea to the action, the other parties failed to appear. The plaintiffs, in this state of case, dismissed their suit against Hughes, the defendant, who resided in Jefferson, and took judgment by default against those who resided in Adams. The whole question is, whether, in this. state of facts, such course was admissible. It is insisted that by the dismission of the suit as to Hughes, the circuit court of Jefferson lost jurisdiction of the cause, and that the judgment against the others is a nullity.

We cannot give our assent to this construction. The court having once acquired jurisdiction, did not lose it by any subsequent change of circumstances. We are not disposed to be governed by the Kentucky decisions, referred to in argument, because their statute contains an express provision, not to be found in ours, that if a verdict should not be found against the defendant residing in the county where the action is commenced, judgment shall not be rendered in such action. 1 Ky. Dig. 343.

The judgment is affirmed.  