
    Williams et al. v. Lewis.
    ju Where a writ was issued against three, and was served on two persons only, judgment on a declaration against the three is erroneous, though the record recites that “the defendants by their attorney waived their plea.”
    •2. Such appearance will be considered as the appearance only of those served with process.
    &. And the judgmentis -erroneous as to all; there being no discontinuance as-to the one not served with process.
    The facts as shewn by the record in this cause are as follows: A writ of capias ad respondendum, in debt, was sued out by Henderson Levyis, against Benjamin M. Williams, Mary M. Mitchell and Charles M. Mitchell, returnable to the fall term, 1823, of Franklin Circuit Court. The sheriff returned that it was executed on Benjamin and Mary Mitchell, and that Charles Mitchell was not to be found. The plaintiff declared against the three defendants, as if in custody. No plea appears in the record; but at March term, 1S25, judgment was rendered for the plaintiff in the following words: ‘ ‘This day comes the parties by their attorneys, and the defendants by their 'attorney waiving their plea, say nothing in bar of the plaintiffs action: It is ^gpgfgpg considered by the Court, that the plaintiff recover against the defendants,” &c.
    Kelly and Hutchison, for the appellants,
    who were defendants below, insisted, that a discontinuance should have been entered as to the defendant, Charles Mitchell; and that it was erroneous to render judgment against all the defendants, on one of whom, process had not been served.
    Wooldridge, for the appellee,
    argued that the objection was waived by the defendant’s appearance and waiver of their plea.
   By CHIEF JUSTICE LIPSCOMB.

The names of the particular defendants who waived their plea are'not given, nor is the plea itself set out. If there had been a general appearance for all the defendants, they would have been estopped from saying the writ had not been executed. It would be presuming too much, to say that this record shewed that Charles L. Mitchell had appeared by his attorney; there were two defendants in Court, and the record may be strictly true without his appearance, by himself or attorney. The judgment was improperly rendered against Charles Mitchell, and it is also erroneous as to the others; there being no discontinuance entered as to the defendant not served with process.

Judgment reversed and cause remanded.  