
    Moore, Appellant, vs. Otis et al., Respondents.
    1. A suit by attachment was commenced before a justice against Benjamin F. Otis and-Otis, as non-residents, upon a note signed by B. F. Otis & Co., and judgment by default was rendered against the defendants upon publication. On appeal to the circuit court, it was held erroneous to refuse permission to the plaintiff to dismiss as to-Otis, it appearing that no such person was ever a member of the firm.
    
      Appeal from St. Louis Circuit Court.
    
    
      C. Harding, for appellant.
    
      H. JV'. Hart, for respondent.
   RylaND, Judge,

delivered tbe opinion of tbe court.

Tbe plaintiff commenced bis suit by attachment, before a justice of tbe peace, against Benjamin F. Otis and-Otis, upon a promissory note, signed by B. F. Otis & Co. Tbe writ was served on Robert Scott, as garnishee, and returned not served on the defendants.” Notices were published according to tbe directions of tbe statute concerning attachments, and judgment was rendered against tbe defendants by default, for $149 64 for debt and interest, and also for costs. This judgment was rendered on tbe 14th September, 1850. On tbe 17th September, 1850, tbe justice’s transcript shows, that tbe defendant appeared and moved the justice to set aside tbe judgment by default, which motion was overruled ; and thereupon an appeal was taken to tbe Circuit Court. Tbe application for this appeal and tbe affidavit for tbe same, were made by Robert Scott, who stated, that be appealed because be considered tlie applicants aggrieved by tbe judgment of tbe justice.

Tbe transcript was docketed in tbe Circuit Court, u John E. Moore vs. B. F. Otis & Co.” Tbe cause was, on motion of defendants by then* attorney, continued at tbe November term, 1851, of tbe Circuit Court. Tbe motion for this continuance was supported by tbe affidavit of Robert Scott, agent for Benjamin E. Otis. Afterwards, at tbe April term, 1852, of said Circuit Court, tbe parties appeared by tbeir respective attorneys, and neither party requiring a jury, tbe cause was submitted to tbe court, and tbe court, having duly heard and considered tbe same, ordered that tbe cause be dismissed at the' costs of tbe plaintiff. Tbe plaintiff moved to set aside this order and judgment dismissing tbe suit; bis motion was overruled, and be brings tbe case here by appeal.

1. Tbe bill of exceptions in this case shows that, when it was called for trial, tbe plaintiff moved tbe court for leave to discontinue tbe action as to ■-- Otis, one of tbe defendants. This motion being opposed by defendants’ counsel, was laid over by tbe court until tbe next morning. The defendants also moved to dismiss the plaintiff’s suit. Pending these motions, tbe plaintiff introduced evidence which it was agreed should be considered by tbe court, sitting as a jury, subject to its decision upon tbe above mentioned motions. This evidence was as follows : “That tbe firm of B. E. Otis & Co.” was (at tbe time tbe note upon which this suit is brought, was made) composed of said B. E. Otis and one Robert Scott; that said Robert Scott was then, and still is, and bad been for a longtime, a resident of the state of Missouri; that B. E. Otis was a resident of Boston, .Massachusetts, and that no other person of the name of Otis,” except B. E. Otis, was ever a member of said firm of “B. E. Otis & Co. ;” also, that the signature to tbe note was in tbe band-writing of B. E. Otis.

Tbe court then overruled tbe plaintiff’s motion for leave to discontinue, and sustained tbe defendants’ motion, and dismissed tbe suit.

Tbe plaintiff afterwards moved to set aside tbe order and judgment dismissing the suit, and brings tbe case here by appeal.

In this case, tbe record shows that B. E. Otis appeared and moved the justice to set aside tbe judgment by default. B. F. Otis appealed from the justice’s court. The appeal bond mentions the case as between John E. Moore, plaintiff, and B. F. Otis and-Otis, defendants. After the case is called for trial in the Circuit Court, B. F. Otis, by his agent, Robert Scott, moves to continue it, and files his affidavit, stating the absence of a material witness ; it was continued then for B. F. Otis, at his costs. The name of ■-Otis runs all along through the record, although the proof showed the Circuit Court that there was no other Otis ever a member of the firm ; that it was composed of B. F. Otis and Robert Scott. It does not appear upon what grounds the court dismissed the suit. It was error to dismiss the whole action arbitrarily ; the court should have permitted the plaintiff to have discontinued as to-- Otis. The other Otis showed no reason — no cause why the suit should be dismissed as to him ; he had appeared in both courts and made his motions in both courts; he had not sought to put the truth of the affidavit on which the attachment issued, in issue; but, from all that this court can see, he moves to dismiss, because there is a name of-Otis in the writ against himself.

The Circuit Court erred in dismissing the action of the plaintiff. The judgment of that court is reversed, and the cause remanded,

the other judges concurring.  