
    Nutting and Others v. Losance.
    Motion to Set Aside Default.—An affidavit filed in support of a motion to set aside a default should show that the defendant has a meritorious defense to the action.
    Security fob Costs.—The ruling of the court below upon a motion to require the plaintiff to furnish security for costs can only be made part of the record by a bill of exceptions.
    New Parties.—Process.—Suit for the specific performance of a contract for the sale of real estate against A, who appeared and filed an answer, in which it was alleged, inter alia, that after the contract with plaintiff, and before the commencement of the suit, he had sold and conveyed the property to B. The cause was then continued, by agreement, with leave to amend by making B a party defendant, but the clerk failed to enter the leave to amend. At the next term, the entry was made nunc pro tune, and the plaintiff then amended his complaint by making B a defendant and charging him with notice of the plaintiff’s equity. The record then recites, that “it appearing to the court by the return of the sheriff on the summons issued herein, that notice of the pendency of said action has been given to B more than ten days prior to the first day of the present term of this court, the said A and.B are called and come not, but make default,” &e. A judgment was thereupon entered for the plaintiff.
    
      Held, that the summons and return of the officer in such a case are properly parts of the record, but the failure of the clerk to copy them does not carry from the record the statement that process has been, duly served, and it must therefore be assumed that the default was after the service of process. But,
    Meld, that as B was not. a party to the original complaint, and no cause of action was shown therein against him, the issuing of the process against him in'vacation, without an order of the court, and before the complaint was amended, was illegal and void, and did not authorize a default.
    APPEAL from the Ripley Circuit Court.
   Elliott, J.

This was a complaint by Losance, the appellee, for the specific performance of a contract for the conveyance of real estate. As originally filed, the complaint was against Nutting alone.

At the first term after the service of process on Nutting, the cause was continued, at the instance of his attorney, owing to his unavoidable absence during that term.

At a subsequent term, Nutting appeared and filed an answer in denial of the complaint, and also setting up matter in avoidance, and alleged that after the contract with the plaintiff, and before the commencement of the suit, he had sold and conveyed said real estate to Sehnvpe and House. A replication was filed to the answer, and the cause was' thereupon continued by agreement of the parties, with the leave of the court to the plaintiff to amend his complaint by making said Schnipe and House defendants thereto. The clerk, however, omitted to enter the leave to amend the complaint. At the succeeding term of the court, on the plaintiff’s motion, a nunc pro tunc entry of said leave to' amend was made, by order of the court, and the plaintiff' then amended his complaint by making said Schnipe and House defendants, and charging them with notice of his equity at the time of their purchase. The record then states: “And it appearing to the satisfaction of the court, by the return of the sheriff on the summons issued herein, that notice of the pendency of said action has been given to Nortz Schnipe and Jacob House, defendants herein, more than ten days prior to the first day of the present term of this court, and the said Ebenezer Nutting, Nortz Schnipe and Jacob Souse, being each three times audibly called, come not, but hex-ein make default.” The cause was thereupon submitted to the coux’t by the plaintiff for trial; and the court, after hearing the evidence, found for the plaixxtiff and rendered a final decree accordingly, and appointed a comxxxissioner to execute and deliver to the plaintiff a deed of conveyance for said real estate. On the next morning after these proceedings were had, and before the minutes thereof wex’e signed by the judge, Nutting appeared, and on an affidavit filed, moved the court to set aside said finding and judgment, which motion the court overruled, and Nutting excepted. This ruling of the court is assigned for error.

Wo cannot say that the coux’t erred ixx x’efusing to set aside the finding and judgment. The réason stated ixi the affidavit for the absence of Nutting at the time of trial is, that he had employed Scobey, an attorney of said court, to attend to said case for him, and expected that he would do so, or procure the sex-vices of some other attoxmey in his stead, ixx case of his absence; that he confidently supposed that said Scobey was in attendance at said coxxx’t until the evening befox’e said trial, when he received a letter from him, saying that he could xxot attend said court; that he, the affiaxxt, left home the next morning axxd came to the court as soon as ho could, bxxt on reaching thcx’e learned that judgment had been rendered against him. The affidavit, howevex*, failed to show that he had any defense, in fact, to said action, or that he had any witnesses or other evidence, the production of which would likely produce a diffex’Oixt result on another trial. No valid reason, therefore, was shown why the finding and judgment should be set aside, or that any injxxry had resulted to Nutting by the trial in his absence.

Another objection urged to the proceedings in the court below is, the refusal of the court to require the plaintiff' to give a bond for costs. This objection is not presented by the record. The code provides that a transcript of motions, affidavits and other papers, when they relate to collateral matters, símil not be certified, unless made part of the record by exception or order of court. 2 G. & H., § 559, p. 273. Here, the clerk has copied into the record an affidavit of the lion-residence of the plaintiff, and the ruling of the.court on amotion for abond for costs. The affidavit could only be properly made a part of the record by a bill of exceptions. No such bill was taken and filed, and the copying of the affidavit into the record was an error of the clerk. It is improperly there, and we cannot notice it.

The only remaining error complained of is, that at the same term of the court at which Schnipe and House were made parties, by an amendment to the complaint, without any appearance on their part, and the appellants claim without process, they were defaulted and judgment rendered against them. The errors are assigned jointly by all the appellants. However erroneous this action of the court may have been, it is not a matter of which Nutting can complain, as it relates to Schnipe and House alone.

We cannot say, however, that there was no. process served on them. True, none is copied into the record; but it appears as a proper entry, and as part of the proceedings of the court, that it was made to appear to the satisfaction of the court, hy the return of the sheriff on the summons issued in the cause, that notice of the pendency of the action had been given to Schnipe and House more than ten days prior to the first day of the term of the court. The summons and return of the officer in such a case are properly parts of the record, and it was the duty of the clerk to have cei’tified them, but his failure to do so does not carry from the record the statement that process had been duly served. Wo must, therefore, assume that the default was after the service of the process.

A majority of this court, however, are of opinion, as Schnipe and House were not made parties to the original complaint, and no cause of action was shown therein against them, that the issuing of the process against them in vacation, without an order of the court, and before the complaint was amended by making them parties, was illegal and void, and did not, therefore, impose on them any obligation to appear to the action, or authorize a default on their failure to do so, after the complaint was amended by making them parties. In this conclusion I do not éoncur. It seems to me, that as the answer of Nutting set up the fact that he had sold and conveyed the real estate to House and Schnipe before the commencement of the suit, which, if true, made them necessary parties to the suit, this was of itself sufficient to authorize them to be summoned to answer to such alleged interest, and hence that their failure to appear justified a default against them; and if so, under the repeated rulings of this court, if the action of the court below was in other respects erroneous as to them, an application should first be made for the correction of the error in the lower court.

J. S. Seobey, for appellants.

J. D. Haynes, for appellee.

The judgment, as to Nutting, is affirmed, with costs, ánd as to Schnipe and House, is reversed, with costs.  