Majority
p. 433Bank of Auburn vs. E. & G. Knapp.
Headnote
When a suit against two defendants is intended to he commenced by the fil. ing and service of a declaration, and a copy of the declaration is served upon only one of the defendants, the plaintiff has no right to enter a nolle prose, qui as to the other, and to amend by converting his declaration into a declaration against the defendant alone who had appeared although the suit be on a joint and several promissory note.The suit in this case was intended to have been commenced by the filing and service of a declaration according to the statute. The plaintiffs declared on a joint and several promissory note, filed their declaration as against both defendants, and served a copy upon E. Knapp, one of the defendants, who appeared and pleaded to issue. G. Knapp was not served with a copy of the declaration ; on the 9th May, the plaintiffs entered a nolle prosequi, as to him, and entered a rule for leave to amend the declaration, so that it should purport to be against E. Knapp only, amended accordingly, and served a copy of the declaration on the attorney of
p. 434
the 28th May, put in a plea which the plaintiffs’ attorneys c{j0Se consider a nullity, and on the 22d June, entered the defendants’ default. The defendants moved to set the same aside. The Court granted the motion, holding that the nolle prosequi as to G. Knapp, was a discontinuance of the 01’ig'Wl suit; that the plaintiff had no right to amend his declaration- by converting it into a declaration against the defendant who had appeared, and that the plea to the amended declaration not having been accepted, but on the contrary having been treated as a nullity, could not be considered as an appearance to the second suit, (if the service of the amended declaration might be treated as the commencement of a new suit,) and consequently that all the proceedings on the part of the plaintiff were irregular and void.