
    GILBERT et al. versus LANE.
    QUESTION IN THIS CASE.
    
      Discontinuance as to parties, not served with process.
    
    1. Where the leading process in á cause against several defen- . dants, did not appear to have been executed upon all; and all appeared, from the record, lo have appeared by counsel; it was held, that judgment against all, was not error.
    This was a suit, by summons and petition in Morgan County Court; and was brought by Lane, in that Court, to réeover of the plaintiffs in error, the amount due on a bond.
    The process seemed, by the returns, to have been' executed, on part only of the defendants; but the minutes showed the general entry, that all had appeared by counsel: and, that a judgment, under that appearance, had'-been entered for the plaintiff.
    A writ of error was taken on this judgment; and it was insisted, that it was erroneous, because no discontinuance had been had against such of the defendants as had not been served.
    Argued by Peck, for the plaintiffs in error, and by Parsons, for the defendant.
   Hopkins, J.

This is a petition and summons, at the suit of Lane, upon a bond' for the payment of money, against all the plaintiffs in error.-

The summons was executed upon one of them, by the sheriff, served on another, by C. Whitney, who makes his return of the fact, not in the name of the sheriff, but in his own name, as deputy sheriff; and, without stating .who the sheriff was. His return shows, also, that the other obligor was not found.— Without a discontinuance against-either of the defendants in the petition, a judgment was rendered, at the first trial term, against them all.

At the last term of this Court, a suggestion 'Was made, for the defendant in error, .that the' record was incomplete: and the Court awarded a writ of certio-rari to the clerk of the County Court of Morgan County, in which the record is. In his return to the writ he states, that on the margin of the entry of the judgment in this cause, upon the minutes of the County Court, were the following names and letters: “Isaac Lane vs. William J. Gilbert, Matthias Maxey, Willis Griffin.” The entry of the judgment states, as it appears both in the first transcript and the last, that the plaintiff came-by his attorney, R. Chapman, and the defendants, by their attorney, D. Fisher;,and that the defendants said nothing in bar of the action. In the return of the clerk, to the writ which issued from this Court, he states that the names, which have been mentioned, are upon the margin of the entry of the judgment on the minutes of the Court. These minutes are signed by the judge of the Court, and when signed constitute records of the Court.— The first transcript of the record omitted the names, which the return of the clerk shows were upon the margin of the entry of the judgment.

If there had been no appearance in the cause for the defendant, upon whom there was no service ofprocess, or for the one. upon whom it was serv- . ed by C. _ Whitney, the judgment would be erroneous on either ground. But, the names of all the defendants being on the margin of the entry, and the statement, in the entry, that the defendants appeared by their attorney, show clearly, that the three defendants all appeared in the suit. They did, voluntarily, what it was the object of the process to compel them to do.

If the attorney was not authorised to appear for some of them, the remedy of those from whom he had ‘ no authority, is against him: but we cannot question the record, which shows he appeared as attorney for all of them.

The judgment is affirmed.  