Opinion of the Court by
Justice Smith.
This is an action against three joint and several obligors.
The principal error relied on by the counsel for the plaintiff in error is, the discontinuance of proceedings as to one of the defendants on whom process was not served, but,who appeared by attorney. Several decisions of the supreme court of Kentucky are cited as supporting the objections urged. Those decisions are inapplicable to the present case, because they relate to cases of a different character from that before the court. The 31st section of the act of 22d of March, 1819, regulating the practice in the supreme and circuit courts of this state, provides that the plaintiff may proceed to judgment against those on whom process is served; and by scire facias against those on whom it may not be served. There is, however, a discontinuance after the appearance of the defendants, which can not be cured, and which is clearly error. The statute can afford no means of curing it. One of the defendants was not served with process, yet he appeared by attorney and pleaded. Against him no judgment has been entered. As this court must presume this appearance to have been authorized, and as no proceedings have been had against him after his appearance and plea, and the judgment has been entered against the other two defendants only, it is most evidently erroneous. If, as was remarked in the argument, he died after plea filed, and before the entry of the judgment, the suggestion of his death should have appeared on the record. The court can not pass beyond the record to ascertain the fact. Let the judgment be reversed with costs, and the cause remanded to the court below, with leave to the plaintiff to proceed anew.
Starr, for plaintiffs in error.
Cowles, for defendant in error.
Judgment reversed.
Lockwood, J., having been counsel in this cause, gave no opinion.
Laws of 1819, page 147.
See note (1) to the case of Kimmel v. Shultz, ante, p. 169.