1. We do not understand under what provision of law the District Judge passed the order appealed against. Section 32, Civil Procedure Code, gives the Court power to strike out the name of any defendant who has been improperly joined as a party, but that must be done on or before the first hearing. In the present case the order was not made until some time after the issues were settled. Again if it appeared to the Court that the cause of action alleged against first defendant alone, and that alleged against him jointly with the other defendants, could not be conveniently tried together, the Court might have proceeded under Section 45, Civil Procedure Code, and have ordered the several causes of action to be tried separately; but (unless the parties otherwise agreed, which was not alleged in the present case) this power also could only be exercised before the first bearing.
2. Lastly the first defendant might have applied under Section 46, Civil Procedure Code, to confine the suit to such cause or causes of action as could be conveniently tried together. The District Judge does not appear to have acted under this Section; for he has not confined the suit as contemplated by that Section, but has dismissed it all together with costs as against the first defendant.
3. The District Judge has assigned no legal grounds for making such an order, and we can discover none in the papers before us.
4. We must, therefore, set aside the order of the District Judge and direct him to restore the suit as against this first defendant to his file, and proceed to dispose of it in accordance with law. Costs will abide and follow the result.