
    4756.
    Wyatt v. Wyatt et al.
    
    Decided September 23, 1913.
    Bail-trover; from city court of Madison — Judge Anderson. February 6, 1913.
    The only entry as to service of the bill of exceptions was an acknowledgment of service signed: “E. EL George, attorney for deft.” This name does not appear elsewhere in the record. A motion to dismiss the writ of error was made by the surety on the bail bond, W. P. Bearden, by his attorney F. C. Foster Sr., on the ground “that said bill of exceptions appears on its face never to have been served on said surety, and that no service was ever acknowledged by him or by his attorney.”
    
      Williford & Lambert, for plaintiff.
    
      F. C. Foster Sr., for the surety.
   Russell, J.

An action of trover was brought and bail process issued. The defendant gave bail bond with surety. On the trial, upon motion of the defendant’s counsel, the bail process was dismissed and the surety on the bond discharged. Thereafter the case proceeded to verdict and judgment against the defendant in trover only. The plaintiff sued out a writ of error, assigning error upon the judgment discharging the surety, but the surety was not served with the bill of exceptions. Held, that the writ of error must be dismissed. The surety was not a party in the court below, but he has a property right in the judgment in his favor. He is a party to the writ of error, and, as his fights are to be affected by the judgment in the Court of Appeals, he is entitled to notice and an opportunity to be heard in this court. Writ of error dismissed.  