Houston and others v. Ward.
Where tho plaintiff removes a easo by certiorari from a Justice’s Court to the District Court, in order to authorize a judgment against a defendant who fails to appear, he should be served with notice of such removal.
Where oneof several defendants i mot served, and the record recites that those served, naming them,appeared, whereupon eaino a jury, <fcc , who find for the plaintiff without naming the defendants, it is, in effect, a discontinuance as to the defendant not served.
Where there nre several defendants, on o of whom was not served, and judgment went against all, on appeal tho judgment was reformed and reversed as to the one not served and rendered against the others.
Error from Red River. This suit was originally commenced before a justice of the peace, on Lhe joint and several note of Houston, James & Tucker. The-*63defendants denied the execution of the note, and the justice gave judgment in their favor. The plaintiff obtained a certiorari, and the case was taken into the District Court. A citation from the clerk of the District Court to tiie defendants was returned, served on the two last, James and Tucker, and Houston not found. The record then set out, “This day came Jefferson Tucker and Christian James, by attorney, and this cause is ordered to be tried de novo, whereupon came a jury,” &c. There was a verdict “for tiie plaintiff', his debt and interest,” without naming the defendants. Tiie judgment on the verdict was against Houston, James & Tucker. In this court it was assigned for error that tiie judgment was against Houston, who had not been served with a. citation, and was therefore not before the court.
J. T. Mills, for plaintiffs in error.
A. Morrill, for defendant in error.
Lipscomb, J.
It is believed that it would have been competent for the plaintiff in tiie court below to have entered a discontinuance as to Houston, on whom there liad been no service, and proceeded against tiie other two defendants. And till», we believe, was in effect done by tiie two parties going to trial, i. e., the two defendants, James and Tucker, it was, however, these two defendants and not Houston who so went to trial. The verdict of the jury was-against them, and it did not include Houston, just as it would have been if a discontinuance had been spread upon the record. Tiie judgment, however, was not authorized and supported by the verdict. By a mistake of tiie clerk it is supposed it was rendered against Houston, who was not before the jury nor embraced by their verdict. The judgment must lie reformed and reversed as-to Houston and rendered against James and Tucker, tiie other defendants.
Ordered accordingly.