M'Gregor v. Cleveland — 12 Wend. 201

Majority

p. 201

M’Gregor and others vs. Cleveland and others.

Headnote

In an action against two or more defendants, where one suffers a default and the others plead to issue, although judgment as in case of nonsuit cannot be granted for the neglect of the plaintiff to bring the cause to trial, a rule may be obtained that the plaintiff try his cause, or pay the costs of the de-fence.

This is a suit against three defendants, one of whom suffered a default in pleading to be entered against him, and the others pleaded to issue.. The cause was tried and a verdict rendered for the plaintiffs, which was subsequently set aside and a new trial granted. The plaintiffs neglecting to bring

August 9.

p. 202

the cause to trial a second time, the two defendants who had pleaded moved for judgment as in case of nonsuit, which was-refused by the court, on the ground that judgment as in case of nonsuit cannot be .granted, where the action is against two- or more defendants, and one suffers a default. 10 Wendell, 596. On showing now a further default in bringing the cause to trial, the defendant asked for relief.

By the Court,

Within the principle of the case of Clark v. Wood and others, 9 Wendell, 435, the defendants here who have pleaded are entitled to relief, and a rule is accordingly directed to be entered, that the plaintiffs unless they bring their cause to trial at the next circuit in the county where the venue is laid, pay the costs of the defence and of this motion.