
    Michael Houston et al. v. Frank Pepperl.
    [Filed September 16, 1891.]
    1. Summons: Joint Parties: Service on One Pending Appeal. E. N. H., Michael H., and Mary H. were sued before a justice of the peace on a joint demand, and service was had upon Michael H. and Mary H., no service being had on E. H. After judgment was rendered by the justice an appeal was taken to the district court, and a summons was issued out of that court and served on E. H., who made a special appearance and objected to the jurisdiction of the court. Held, That as the plaintiff had been unable to obtain service on E. H. while the action was pending before the justice, he had authority to obtain such service while the cause was pending on appeal.
    2. Evidence held to sustain the verdict, and there is no material , error in the record.
    Error to the district court for Pawnee county. Tried below before Broady, J.
    
      J. K. Qoudy, for. plaintiffs in error, cited:
    
      Puchett v. Pope, 3 Ala., 552; Hubbard v. Dubois, 37 Yt., 94; Langley v. Grill, 1 Col., 71.
    
      Story & Story, contra.
    
   Maxwell, J.

This action was brought by the defendant in error against the pláintiffs in error and E. N. Houston, before a justice of the peace of Pawnee county, upon the following account :

2 sets door butts.......................................... $0 30
2 locks...................................................... 90
10 lbs. 20 door nails...................................... 50
12 lbs. 8 door nails......;................................ 60
6 lbs. 3 door nails...............'.......................... 30
6 lbs. 8 door case...........................'............... $0 30
6 yds. wire cloth.......................................... 1 20
3 papers tacks............................................. 15
1 screen door............................................... 1 60
3 sheets tin................................................. 60
3 lbs. nails.................................................. 15
5 lbs. 8 door nails......................................... 25
1 gal. oil.................................................... 25
5 lbs. nails.................................................. 25
Scythe and snath.......................................... 1 65
Calf weaner................................................ 30
Strainer pail................... 65
Wood bowl..................:.............................. 25
Eork.......................................'.................. 75
Staples.................................'...................... 15
Nails......................................................... 50
§• gal. L. oil................................................ 35
Spade..............................................i......90.
Nails......................................................... 50
Nails....................... 50
Hinges.......................................... 30
Paint and sandpaper..................................... 2 10
J gal. oil...................... 35
Nails......................................................... 15
30 Warrior sections....................................... 3 75
25 lbs. 10 door nails...................................... I 00
10 lbs. 20 door nails...................................... ■ 40
Staples...................................................... 05
Bolts....................... 60
2 forks................................. 1 40
2 gal. U. C. paint..................;...................... 2 50-
1 G. B...................................................... 1 50
1 gal. oil........................ 70
5 gal. U. C................... 6 25
1 brush............................................... 1 00
Sept. 16, 1887, 5 lb. wool twine........................' 50
Sept. 26, 1887, 3 lb. wool twine........................ $0 30
Oct. 29, 1887, 2 lb. wire nails.......................... 12
Oct. 29, 1887, 2 hasps................................... 20
Oct. 29, 1887, M. caps................................... 10
Oct. 29, 1887, shot....................................... 20
Nov. 7, 1887, 36 bolts.................................... 95
Nov. 7, 1887, two bits................................... 45
Nov. 7, 1887, brace....................................... 75
Nov. 14, 1887, nails...................................... 10
Nov. 14, 1887, rivets.................................... 20
Nov. 24, 1887, 211 lbs. galv. b. wire................. 12 10
Dec. 16, 1887, nails...................................... 45
Jan. 4, 1888, fork handle.....................r.......... 15
Jan. 4, 1888, axle grease................................. 25
Jan. 23, 1888, axe handle............................... 35
$53 07

Service was had upon the plaintiffs in error, but not on E. N. Houston.

On the .trial of the cause the jury returned a verdict for the full amount claimed in favor of the defendant in error, and against the plaintiffs in error, and judgment was entered on the verdict. The case was then appealed to the district court, and while such appeal was pending;, a summons was issued out of said court and served upon E. N. Houston.

Afterwards he made a special appearance in the case, and objected to the jurisdiction of the court over him, claiming, apparently, that there was no authority to serve him with summons in the appellate court. His objections were overruled and he made no further appearance in the case.

On the trial of the cause in the district court, the jury returned a verdict in favor of the defendant in error for the sum of $53.07, and the court rendered judgment against all three of the Houstons for the amount of the verdict.

This is claimed to be a joint debt conti’acted by all three of the Houstons, and in such cases judgment maybe rendered against the persons served. The action proceeds as a joint action. Any defendant not served may appear voluntarily at any stage of the action, and we know of no reason why compulsory process should not be used to obtain an appearance. Here due diligence appears to have been used to obtain service on E. N., and if he had desired to make a defense no doubt. time would have been given him for that purpose.

It is evident that E. N. Houston, Michael Houston, and Mary Houston are brothers and sister; that their father settled on a homestead in Pawnee county, but died before making final proof; that thereupon their mother made final proof and obtained the title. There is some proof tending to show that the mother is dead and that she left a will giving the land to her two sons. No copy of the will was introduced in evidence to show that Mary was excluded from any share of the estate. This should have been done if it was intended to excuse her from liability.

The testimony tends to show that most of the goods in question were furnished for a building in which all three of the Houstons had an interest, and for their benefit.

The testimony of Mary Houston alone is sufficient to show that she is liable, and the same is true of that of Michael Houston, and it is apparent that the verdict and judgment are right.

It is unnecessary to review the instructions. The judgment is right and is

Affirmed.

The other judges concur.  