
    HOBSON & SONS vs. EMANUEL et al.
    1. A written acknowledgment of service of a writ by a defendant, without proof of such acknowledgment, is not sufficient to sustain a judgment by default.
    2. But where parlies appear in court, the necessity of the actual service of process is dispensed with.
    o. And an entry on the record, that the parties came by their attorneys, &c. is sufficient evidence of their appearance.
    4., Where one of several defendants, sued as partners, pleads in 'abatement, and the jury find the issue for the plaintiffs, and .judgment, is rendered by the court, for the amount of the plaintiffs’ claim, the defendants cannot object in error, on the rendition of judgment against ail, on the issue formed upon the plea, the jury haviug found no damages.
    Error to Perry Circuit court.
    Assumpsit on two promissory notes, ágainst Baker Hobson, Nicholas Hobson and China Hobson, copartners, trading under the firm and style of B. Hobson & Sons. The service of the writ was accepted by defendants in the following words endorsed on the writ:
    “We do hereby acknowledge legal service of the within —this 28 Sept. 1836. B. Hobson & Sons.”
    To the declaration, Teseharner D. Hobson, who had been sued jointly with Baker and Nicholas Hobson, merchants, Sfc., in his own person, came and said that he was named and called Teseharner D. Hobson, and abs que hoc that he never was called China, which he was ready to verify, and prayed judgment, and that the writ might be quashed, &c. Plaintiffs replied that Tesehar-ner was often called Ohiner, as the name of Teseharner.
    
      And at Spring term, eighteen hundred aiid thirty^ Séveh, came the parties, by their attorneys, and likewise carne a jury, who said they found the issues for the plaintiffs. It was therefore considered by the court, “ that the plaintiffs the sum of twenty-five hundred and fifty-four dollars, the damages in the plaintiff’s declai’á-tio'fi mentioned, and also their costs of suit in this behalf expended, for which execution,” &c.
    And at Fall term, eighteen hundred and thirty-eight, came the plaintiffs, by their cornu el, and moved the codrt for direction to the clerk, to amend a clerical error of the Spring term, eighteen hundred and thirty-seven, of the fccuirt, so that judgment might be rendered nünc -pro mkc-, that the jury find the issues in favor of the plaintiffs, áñd assess their dama'ges, &c. The motion was granted, find it was considered that execution might issue, &c.
    To reverse the judgment, a writ of error was sued out. • I’he following errors were assigned:
    1. It does not appear that legal service of the writ; \tfas ever made upon defendants — or that they wéré iñ court,
    • 2. The court erred in rendering judgment ágaiñst all the defendants to the action for the damages, when ifi§ óhíy issue was upon the plea in abatement filed by 6ti& déféhdantj and the jury lffiving assessed no damaged'.
    
      Porter, for plaintiffs in error,
    
      Phelan, contra.
   GQIfDTHWAITE, J.

— if the judgment of the Circuit court was supported only by the acknowledgment of service, this, without proof, would he insufficient to sustain it, as decided by this court in Welch vs. Walker et ux. (4 Porter, 120;) but it_ is disclosed by the record; that at the trial term, “ came the parties, by their altor* rúes, and thereupon came a jury,” &c. Similar entries have been held sufficient evidence of the appearance of parties, and to dispense.with the necessity of actual service of process— (Gilbert vs. Lane, 3 Porter, 367; Lucy et al. vs. Beck, 5 Porter, 167.) The first assignment is therefore not supported by the record.

The second assignment can avail nothing. One of the defendants to the action, alone thought proper to contest the suit, and his defence did not extend to the merits of the cause. After the determination of the issue on thé plea in abatement, the actiou remained wholly undefended ; and, although it would have been more regular, to have entered a formal judgment of nil dicit, yet there is no substantial error in that wh cli was rendered. It was the privilege of the plaintiff to insist, that the jury should assess his damages, when they ascertained the issue in his favor, but the omission to do so, gave the defendants no rights, or if they were thereby placed in a condition to plead to the merits, they have not done so, and as no defence was interposed, after the determination of the only issue before4he jury, the court properly rendered judgment-for.the amount due on the notes.

The ame nled judgment is not attempted to be made the subject of revision, and notice of it is therefore unnecessary. Let the judgment be affirmed.  