
    Cyrus Riddle v. Simpson Oldham.
    Discontinuance of Suit — Cross-petition.
    When Lindsey discontinued his suit against Oldham, who was thereby put out of court, his cross-petition against Riddell had no basis upon which to stand, therefore fell dead.
    APPEAL PROM GRANT CIRCUIT COURT.
    September 25, 1866.
   Opinion oe the Court by

Judge Bobebtson :

Oldham’s cross-petition against Riddle sought a judgment against him only in the event of a rescission of his contract and a loss of his land in the suit of Lindsey against Riddle and himself, and Kendal and others.

But Lindsey discontinued his suit as against Oldham, who was thereby .put out of court, and, therefore, there neither was, nor could have been, any decree against him. Consequently, his cross-petition having no basis to stand on, fell dead and could not have been revived without a supplement allegation, that notwithstanding his abandonment of his suit against him, had afterward so proceeded as to recover his land. But the record does not show any such supplemental averment, and does show that Lindsey’s decree did not touch Oldham or his interest.

Wherefore, according to the record now before us, there was no foundation for the judgment in Oldham’s favor against Riddle which the latter now seeks to reverse.

W. T. Simmons, for appellant.

That judgment, being thus baseless and palpably erroneous, is reversed and the cause remanded, with instructions to adjudge expressly a formal dismission of Oldham’s cross-petition against Riddle.  