
    Harriet Ash, Frances Hunt, and Jeremiah Hunt v. James F McCabe, and Elizabeth Williams.
    "Where judgment in a civil action is taken against several defendants, only some of whom have appeared in the action or been served with process, and those not appearing or being served afterward release all error in the proceeding, the defendants served with process cannot reverse the judgment for such error or irregularity.
    Motion for leave to file a petition in error to reverse the judgment of the district court of Meigs county.
    
      W. H. Lasley for the motion :
    1. A joint judgment against two or more persons, where one of them has not been served with process in the suit, or otherwise brought into court according to the forms of law, is erroneous, not only as to the judgment debtor not served, but also as to all the rest. Such a judgment is an entirety, and, if erroneous as to one, is erroneous as to all. 2 Bacon’s Abr. 500 ; Cowx v. Lowther, 1 Lord Raymond, 600 ; King v. Marlborough and Crocker, Coke’s Eliz. 303 ; Richard & Finney v. Walton, 14 Johns. 434 ; Hall v. Williams et al. 6 Pick. 245 ; Holbrook v. Murry et al. 5 Wend. 161; Sargeant et al. v. French, 10 N. H. 444; Harman v. Brotherson, 1 Denio, 537 ; Van Schoonhover v. Comstock, 1 Denio, 655 ; Covenant Mut. Life Ins. Co. v. Cloven, 36 Misso. 392 ; Nash’s Pr. 308 ; Blanchard, Coolidge et al. v. Gregory, 14 Ohio, 413 ; Stoyel v. Wescott, 3 Day, 349 : Brenner v. Welb, 45 Maine, 483 ; Smith v. Rollins, 26 Miss. 408; Willie v. Thomas, 22 Texas, 175 ; Gaylord v. Paine, 4 Conn. 190 ; Easton v. Calender, 11 Wend. 90 ; Rangely v. Webster et al. 11 N. H. 299 ; Pomeroy v. Betts, 31 Misso. 419 ; Hilliard on New Trials, 533, sec. 167.
    2. A release of error l:y one joint judgment creditor, does not bar the right of the others to error. Blanchard, Coolidge et al. v. Gregory, 14 Ohio, 413 ; and cases cited, by counsel for plaintiffs in error, in that case ; Smetters et al. v. Rainey et al. 13 Ohio St. 568 ; and 14 Ohio St. 287.
    
      
      Oartright &■ Russell, contra :
    1. A judgment against several will not be reversed on account of error intervening as to but one of them, unless that one become a plaintiff in error. See Shirley v. Lunenburgh, 11 Mass. 385. There was no error committed in the district court, of which the plaintiffs in error can complain.
    2. The release of error by Elizabeth Williams was a bar to the petition in error in the district court.
   Br the Court :

McCabe brought an action in the common pleas against the plaintiffs in error, and Elizabeth Williams, for work and labor done. The plaintiffs in error were duly served with process, but no process was served upon Elizabeth, nor did she enter her appearance in the action. On the trial of the case j udgment was entered for McCabe against all four of the defendants therein. Subsequently Elizabeth released all error in the judgment and proceeding. The other defendants, the present plaintiffs in error, now seek to reverse a judgment of the district court whereby that of the common pleas was affirmed, alleging for error that judgment was taken against all four of the original defendants, when only three of them had been served with process.

We fail to see any error in this, to the prejudice of the plaintiffs in error. Under our practice, if we should set the judgment aside, it would be our duty to proceed at once to render such judgment as the common pleas ought to have rendered, which would be the same judgment against the three which has already been rendered against the four. It i$ difficult to see how this would benefit the plaintiffs in error. Apparently it would be to their prejudice, rendering each of them, as between themselves, liable for one-third part of the judgment, instead of one-fourth part of it, for which they are now liable.

Motion overruled.  