
    Wm. S. Hungerford, Defendant in Error, vs. George P. Fay, et al., Plaintiff in Error.
    Judgment affirmed.
    
      Error to Cape Girardeau Circuit Court.
    
    
      L. Houck, for Plaintiff in Error.
    
      L. Brown, for Defendant in Error.
   Wagner, Judge,

delivered the opinion of the court.

The plaintiff brought his action in ejectment against the two Pays to recover the possession of a certain piece of land. The Fays were personally served but made no answer and permitted a judgment to be taken by default. At the same term upon motion, Franklin came in and was made a co-defendant. He filed his answer, setting up that one of the Fays had a title superior to that of plaintiff. The cause was then continued, and at the next term, no motion being made to set aside the interlocutory judgment, the court gave final judgment against the Fays, and refused to let Franklin make a defence for them, which they had not seen fit to make for themselves. •

. The regular costs of the suit were adjudged against the original defendants, and the special costs which Franklin made by his intermeddling, were assessed against him and it was from that judgment that he sued out his writ of error.

In the first place, it is not perceived what right Franklin had to volunteer a defence for the Fays, which they failed to make for themselves. Secondly; it was not competent to defend for them on the merits, when the judgment by default remained in force.

We think the court was right in assessing against Franklin the- costs which he had been instrumental in causing.

And finally we will remark, that this court will give no encouragement to the too prevailing practice of bringing cases here which have no merit, and involve only trifling pecuniary amounts.

Judgment affirmed.

The other judges concur.  