McNeely

This proceeding concerns a certain action in which the petitioner, as plaintiff, sued one Connell and one Hill for damages as joint tort-feasors. Hill appeared in the action and made answer to the complaint, but the default of Connell was taken; whereupon the petitioner elected to proceed against the latter under the default and judgment in the sum of one thousand five hundred dollars was entered against him. Connell then came forward and presented a motion to set aside the default and the motion was granted. The petitioner appealed from the order thus made and the appeal is now pending. The action was set down for trial against Hill, but, • at the time set, the respondent refused to proceed with the hearing. The petitioner then filed in this court his application for a writ of mandate requiring the respondent to try the action as to Hill and an alternative writ was issued.

It is contended that the petitioner is entitled to the writ under the terms of section 579 of the Code of Civil Procedure, which reads: “In an action against several defendants, the court may, in its discretion, render judgment against one or more of them, leaving the action to proceed against the others,…