Anonymous — 4 Hill & Den. 19

Majority

p. 19

Anonymous.

Headnote

In an action against the maker and endorser of a promisory note, after severance and judgment against one of the defendants, his name should no longer be used either in the pleadings or proceedings against the other defendant.

Accordingly where, after severance and judgment against C. D., one of the defendants in such action, the other instituted proceedings for judgment as in case of nonsuit, entitling his papers thus, “ A. B. impleaded with C. D. ads.” &c.; held, that they were not properly entitled, and the motion was therefore denied.

v3. Taber, for the defendant, moved for judgment as in case of nonsuit on an affidavit in which the suit was entitled, A. B. impleaded with C. D. at the suit of the plaintiff. The suit was originally commenced against the two defendants, the one being maker and the other endorser of a promissory note ; but the suit had been severed and judgment perfected against one of the defendants before the other gave notice of this motion.

J. L. Tillinghast, for the plaintiff, objected that the affidavit was wrongly entitled. There was no suit pending against the two defendants mentioned in the entitling of the affidavit. .

By the Courts

The objection is fatal. After the severance of the action and judgment against one of the

p. 20

defendants, his name should no longer be used either in the pleadings or proceedings against the other defendant. But the motion may be renewed.

Ordered accordingly.