
    COMPTON & AL vs. PATTERSON.
    An appealliesfrom a judgment of dismissal. The indorsee cannot require that the payee be made a party and answer interrogatories.
    Appeal court of the sixth district.
   Martin, J.

delivered the opinion of the court. The plaintiffs brought suit as endorsees, on the defendant's note, he pleaded the general issue, attacked the consideration of the note and prayed that the payee, his vendor, might be made a party, and be directed to answer interrogatories, which he propounded.

West'n District,

Sept. 1824.

The district judge allowed the vendor to be made a party and directed he should answer the interrogatories. The plaintiffs counsel's objection to this were overruled, and he took a bill of exceptions.

The case was for several terms continued, and the plaintiffs as often pressed for judgment. It was at last dismissed, and they appealed.

It is urged an appeal does not lie from a judgment of dismissal, which is not final and works no irreparable injury, since the plaintiff is perfectly at liberty to renew his suit. So he may in the case of a non-suit, and be non-suited again, and renew his suit ad infinitum. Yet we have held that an appeal lies from a judgment of non-suit. Chedoteau's heirs vs. Dominguez. 7 Martin, 490. It lies from the discontinuance of a cause. Brand & al. syndics vs. Shaumburg, vol. 1, 698.

The defendant’s note was endorsed before its maturity, and between the endorsees and maker the consideration could not be gone into. Hubbard & al vs. Fulton's heirs, id. 241.

Wilson for the plaintiffs, Thomas for the defendant.

The district judge erred in allowing the payee and indorser to be made a party; if he abused the defendant's confidence, the latter must seek his remedy in a distinct action, and cannot on this account delay the plaintiffs recovery.

It is therefore ordered, adjudged and decreed that the judgment of the district court be annulled, avoided and reversed, that the order allowing the endorser to be made a party, and that directing him to answer interrogatories, be rescinded, and the case remanded with directions to the judge, to proceed therein according to law. The defendant and appellee paying costs in this cause.  