
    Peters and anOther v. Crittenden.
    Where the defendant excepted to the sufficiency of the writ and service, and in support of his exception exhibited under oath the copy of the writ whicli was served upon him, showing, first, that it did not have the number of the case marked upon it; second, that it purported to be under the seal of the court, whereas, instead of a seal, there was a scrawl with x.. s. marked in it; third, that the day it came into the hands of the sheriff was not marked upon it as upon the original: Held, That the objection was not well taken.
    Where the instrument sued on is attached to and made a part of the petition, it may be read to the jury as a part of the petition before the answer of the defendant has been read.
    No objection for variance can be sustained where the instrument sued on is made a part of the petition. (Note 27.)
    Where one of several defendants fails to answer after verdict against those who have answered, the judgment may be entered up jointly against all, without the necessity of having previously taken an interlocutory judgment by default against the party failing to answer. (Note 28.)
    Error from Bowie. This was a suit by Crittenden against Peters as maker and Vandyke as indorser of a promissory note. The petition averred that Peters resided in the county of Bowie, and that Vandyke resided in the county of Bed Biver. The note, was annexed to and made a part of tlie petition. A citation was issued in the usual form, commanding the sheriff of the county of Bowie to summon Peters to appear, &c., to “answer the petition of Crowins Crittenden exhibited against said Lemuel Peters and Lambert D. Vandyke,” &c. A similar citation was issued commanding the sheriff of the county of Bed Biver to summon the said Lambert D. Vandyke. Both citations were returned served. The defendant, Peters, excepted to the sufficiency of the writ and service, and in support of bis exception exhibited under oath the copy of the writ which was served upon him. The objection was that the pretended copy was not a true copy, because, first, it did not have the number of the case marked upon it; second, that it purported to be under the seal of the court, whereas, instead of a seal, there was a scrawl with l. S. marked in it; third, the day it came into the hands of the sheriff was not marked upon it as upon the original. The objection to the writ was that it did not command the sheriff to summon both the defendants, but Peters only. The motion was-overruled. The statement of facts then proceeded: “After the motion to set aside the service was overruled, the parties proceeded to trial, and the plaintiff’s attorney read tlie petition and the face of the note, but before reading the indorsement on tlie note and immediately after reading the face of the note the defendant objected to tiie note being read as evidence^ which objection the court overruled as being made too late and because the note was sufficiently described, after which the plaintiff’s attorney proceeded to read tlie indorsement on tlie note. The note was read before the defendant read his answer.” Peters had filed a general denial. Vandyke had not answered. Tlie judgment recited that tlie parties appeared, &c., and the verdict and judgment were against botli defendants, no default having been taken against Vandyke. The judgment was dated March 7th, 1851. Tlie errors assigned were—
    Note 27. — Greenwood v. Anderson, post, 235; Pearoe v. Bell, 21 T., 691.
    Note 28. — Caldwell v. Brown, 13 T., 221.
    1st. Tlie ruling of the court on the exceptions to the sufficiency of the writ and service. -
    2d. The ruling of the court on the objection to the introduction of the note as evidence.
    3d. The court permitted the plaintiff to offer evidence in support of his cause before defendant’s answer was read.
    4th. The promissory note offered in evidence was variant from the one described in the petition.
    5th. Judgment by default was not rendered against Vandyke.
    6th. Judgment final upon the verdict of a jury was rendered jointly against botli defendants, when the defendant, Vandyke, had not answered or otherwise appeared to tlie action.
    7th. Overruling motion for new trial.
    8th. There is lío date to the judgment.
    
      Peters and Pirlcey, for plaintiffs in error.
    
      W. Trimble, for defendant in error, suggested delay.
   Hemphill, Ch. J.

The plaintiffs in error assign eight grounds for the reversal of the judgment, no one of which appears to be well taken.

There may, perhaps, be some irregularity in not taking an interlocutory judgment by default against Vandyke, who did not appear, but the stature provides only that this may be done, and not positively that it shall be entered. The statute also declares that but one final judgment shall be given in the suit. (Art. 706, Dig.) When this is done, the rendition of tlie prior interlocutory judgment becomes immaterial. If it be error, it is one of which the plaintiffs-in error cannot complain, as it saves them from costs which would otherwise have been increased.

Judgment affirmed.  