
    JANUARY TERM, 1840.
    Hughes & Scott vs. J. W. Evans.
    Where several persons are sued at law, and the process is served on all but one, who neither appears nor pleads, and those served plead, and upon their plea the case was submitted to the jury, who found for the plaintiff below, and judgment of the court was rendered thereon against all of the defendants; held, that there being no discontinuance as to the party not served, the judgment was erroneous and must be reversed.
    In error from the Hinds circuit court.
   Mr. Justice Turner

delivered the opinion of the court.

The only assignment of error which we deem it necessary to notice, is that the judgment is rendered against all the defendants when there was no service of process or discontinuance as to one of the defendants below.

The suit was brought by Evans against Duggan, Terrell, Hughes & Scott on their promissory note to Evans. The process was not served on Terrell, and there was no discontinuance as to him. Duggan, Hughes & Scott plead the general issue, on which issue was joined, and trial had before a jury, and judgment rendered against the defendants generally.

This case comes within the principles laid down in the case of Davis v. Ternan & Co. 3 How. 805.

Process not having been served on Terrell one of the defendants, the cause could not legally be tried as to the other defendants without discontinuing as to Terrell.

The judgment must be reversed, and cause remanded for further proceedings in the court below.  