
    W. G. Deshazer v. Commercial Bank et al.
    Appeal — Subsequent Setting Aside of Judgment.
    Where, after an appeal lias been taken from a judgment, tke subsequent setting aside of the judgment on motion will not affect the appeal.
    APPEAL FROM MERCER CIRCUIT COURT.
    February 25, 1874.
   Opinion by

Judge Peters :

From the judgment now complained of by appellant, an appeal was prosecuted to this court by Jesse Deshazer, and the judgment reversed as to him (Manuscript Opinion 1872), and after this appeal- was taken, and the mandate entered in the other appeal, ap-pellee, at the November term, 1873, of the court below, moved said court to set aside said judgment. That motion was sustained and the judgment set aside; and it is now insisted that as the judgment from which the appeal was prosecuted has been set aside, there no longer exists any judgment, and consequently there is nothing to appeal from. When.the appeal was sued out there was a judgment against appellant, and though void, it affected his rights; and being prejudicial to him he had a right to resort fi> this court for redress, as was held by this court in Ruby v. Grace, 2 Deval 540, and in subsequent cases; and the subsequent order setting aside that judgment did not divest him of that right.

C. A. Hardin, J. B. Thompson, for appellant.

J. B. and P. B. Thompson, for appellees.

The judgment against appellant was void because there was no service of process, actual or constructive, and no appearance by him. in the case. Wherefore, the judgment is reversed and the cause is remanded for further proceedings consistent herewith.  