Barnett v. Tayler

Citations

• 30 Tex. 453

Syllabus

<p>Where suit' was instituted against W. L. B. and 0. 0. B., as makers, and P. L. H., as indorser, and the citation which issued for 0. C. B. was served upon W. L. B., it was no service which 0. 0. B. was bound to respect, and the judgment by default against him is erroneous.</p> <p>The 45th section of the act regulating proceedings in the district court provides for the discontinuance as to defendants not served, with a proviso; but this section shall not be so construed as to allow a plaintiff to discontinue as to the principal, and take judgment against the indorser or surety jointly sued. (Paschal’s Dig., Art. 1448, Note 553.) This article is to be construed with reference to section 46, which declares, that no judgment shall be rendered against the indorser as surety, unless the judgment is at the same time rendered against the principal, except where the plaintiff discontinues as to the principal, because he resides beyond the limits of the state, or is insolvent. (Paschal’s Dig., Art. 1449, Note 554.)</p>