
    William Padgett v. John W. Highland.
    Appearance — Answer of One Defendant.
    An answer, which on its face purports to be a joint answer of co-defendants, yet if filed as the answer of one only, the other defendant is not a party to the action, no process having been served on him.
    APPEAL FROM BATH CIRCUIT COURT.
    February 10, 1870.
    
      Nesbitt & Gudgell, for appellant.
    
    Stone, for appellee.
    
   Opinion of the Court by

Judge Hardin:

Whether the circuit court properly perpetuated the injunction obtained by the appellee, of the judgment of $56 against' him, on the ground that he was not before the court in the original action, is the only question to be determined on this appeal.

Although an answer pleading a set-off, was filed, which on its face, purports to be the joint pleading of the appellee and his co-defendant, lies, and might, if filed .as such, have constituted an. appearance by the appellee, although he was not served with process, yet as the answer was only ’filed as the answer of lies, and an alias summons was at the same time ordered to be issued against the appellee, on’the appellant’s motion, the answer should only have been treated as the pleading of lies, and not as constructively entering the appearance of the appellee.

We are of the opinion, therefore, that the appellee was not legally before the court, and the judgment as to him was void.

Wherefore the judgment in this action, perpetuating said injunction, is affirmed.  