M'Gregor v. Cleveland — 10 Wend. 596

Majority

p. 596

M’Gregor and others vs. Cleveland and two others.

ALBANY,

Dec. 1833.

Headnote

Judgment as in case of nonsuit cannot be obtained, where the action is against two or more defendants and one has suffered a default.

This was an action of assumpsit; one of the defendants suffered a default in not pleading; the two others pleaded to issue; the plaintiffs had a verdict, 'which was subsequently set aside and a new trial ordered. Since when, no proceedings being had, the defendants who pleaded moved for judgment as in case of nonsuit.

S. Stevens, for the defendants.

I. Williams, for plaintiffs.

By the Court,

In Bates v. Lansing and others, 8 Johns. R. 289, it was decided that in a case circumstanced like this, judgment as in case of nonsuit for the neglect of the plaintiff to bring his cause to trial could not be rendered. That was an action of trespass, and it was urged on the motion, that this being assumpsit, there is a distinction; but by reference to the cases in the books, it will be seen that the same rule prevails in assumpsit as in trespass, 1 Burr. 357,3 T„ R. 662, recognized in 4 Wendell, 432. The principle of these cases is, that as the statute only authorizes the like judgment to be given as in cases of nonsuit, and as in a case like this the plaintiff could not be nonsuited at the trial, the conse»

p. 597

quence is that, judgment as in case of nonsuit for not proceeding to trial cannot be granted, where, in an action against two or more defendants, one has suffered a default.

The motion is denied.