
    Society for propagating the Gospel in foreign parts vs. Arden H. Ballard and William Ballard.
    Franklin,
    
      January, 1832.
    One cannot be legally made a defendant in a suit at law, unless he be served with process in some way provided by statute ; and
    Where a landlord in ejectment resided out of the state, and a writ, sued out against him, having been returned non est invantus, the court directed notice of the pen-dency of the suit to be given by publication in a newspaper, and he subsequently appeared and answered to the action, — it was decided that he be dismissed therefrom with cost.
    This was an action of ejectment. The writ was duly served on William Ballard, and a regular non est inventus was made as to the person and property of Arden Ti. Ballard. The action was entered on the docket of the county court, as against both defendants. And after one or two continuances, the court, at the request of the plaintiffs, made an order that notice to Arden H. Ballard, of the pendency of the action against him, be published in the newspapers, the same as though the writ had been duly served, upon him. This order of notice was published in the newspapers, as required by the court; and after its publication, Arden II. Ballard appeared in the action, and filed the following plea, or motion :
    “ Franklin county court, September term, 1'83D. And now “ the said Arden II. Ballard, in court by his attornies, comes- “ and moves this honorable court, that said cause may be dismissed as to the said Arden H. Ballard,because he says,that said writ “ has never in any manner been served upon the said Arden H.r “ as will appear by said officer’s return on said writ. Wherefore, “ the said Arden II. prays that said suit, as to him, be dismissed;- “ and for his costs.”
    
      Replication the same term : “ And now the plaintiffs, in reply. “ to the plea of the defendant, say, that the said cause ought not' “ to be dismissed as to the said Arden II. Ballard, because they “ say, that he, the said Arden, at the time of the service of said! “ writ, was not an inhabitant, of this state,, nor. had he resided in* “ it, for a number of years, nor has since resided in this state. “ Nor had the said Arden any family here, or personal property “ within the knowledge of the plaintiffs, which might have been “ attached on said writ. But the said Arden, at the time of the “ commencement of this action,resided in the territory of Michigan, “ and no service could have been made on him, except in the “ manner which has been adopted in this case, by publishing in a “ newspaper by order of court. And the plaintiffs further say, “ that the said Arden, is the landlord, and is required by statute u to be made a defendant in this suit.
    This replication was demurred to ; and there was a joinder in demurrer. And afterwards, at the December adjourned term, 1830, the county court rendered judgement, that the replication is insufficient in law, and that the said Arden Tl. Ballard be dismissed with his costs, taxed and allowed at $9,38. To which decision the plaintiffs excepted, and the ease was thereupon reserved for the opinion of this Court.
    
      Addis and 'Davis, for the plaintiffs.
    
    The case shows that Arden H. Ballard is the landlord, and William Ballard the tenant, holding under him ; and the statute (p. 84) makes it necessary that the suit should be brought against both; and if it had been otherwise brought, the suit must have abated. Arden, H. Ballard resides in the territory of Michigan, and had no property here ; of course, no personal service could have been made on him. The statute (p. 64-65) provides, that writs of summons or attachment shall be served by delivering the defendant a copy thereof, or by leaving such copy at the house of his usual abode ; and if the defendant do not reside within this state, and real estate be attached, then the copy is to be delivered to his tenant, agent ■or attorney, if any be known ; and if no agent, tenant or attorney, be known, then a copy must be left with the town clerk ; and if personal property be attached, then at the place where the property is attached.
    It will, be seen that the statute requires a copy to he left only where the defendant is an inhabitant of the state, or where real or personal property is attached. In this case the defendant, Arden H. Ballard, was notan inhabitant of this state, and no property was attached. The requirements of the statute respecting the leaving a copy cannot, therefore, apply to him ■; for it would be •idle to pretend that the officer must go out of the state to serve the writ. If a copy had been left at some place where the said Arden bad formerly resided in this state, pr with some agent_or attorney, if any were known, it would have been nugatory, because not required by the statute.
    A case like the present is not provided for by any particular statute ; it must, therefore, be subject to the general laws of the land,taken in connection with that part of the statute which requires the landlord to be joined with the tenant. The legislature would never have directed the landlord to be joined, if it had not supposed he could, in all cases, be legally brought into court. We must, therefore, presume that the landlord can be legally made a defendant in court, though he reside out of the state, and no process be served on him. Now it is contended, that the only legal mode of making Arden H. Ballard a defendant, was that which was adopted in this case, by making a non est return, entering the cause in court, and publishing as in cases where the defendant is out of the state at the time the suit is brought, and has not had notice. If such proceedings are not sufficient to make him legally a party on the record, then there is no way in which he can be sued. If there be any question respecting the legality of these proceedings, his appearance in court, and answering to the cause, is presumed to remove all doubts on the subject.
    
      Smalley and Adams, for the defend ant.
    
    The plaintiffs say that A. H. Ballard was the landlord of Wm. Ballard, and ought to have been joined in the suit. Admitting that A. H. Ballard is not an inhabitant of this state, and has no personal property here ; that he is landlord, and ought to be joined in this suit, — it is difficult to comprehend how the plaintiffs can legitimately draw from these premises the conclusion that they could sue A. H. Ballard, or take an illegal course to make him party to the record. It is now universally the received opinion that a judgement is not binding inpersona when the person is not within the jurisdiction of the court rendering judgement. Will the court aid the plaintiffs in an attempt to acquire a fruitless jurisdiction, or subject the defendant to the hazzard hereafter of an irregular proceeding? The judgement of the court, if it have any jurisdiction, must be in rent; and the plaintiffs rest the regularity of their proceedings on the necessity of joining the defendant, A. H. Ballard, and the fact that there is no res upon which to found jurisdiction.
   Baylies, J.

delivered the opinion of the Court. — The statute requires, that ejectment should," in all cases be as well against the “ landlord or landlords, if any there be, as against the tenant, or «' tenants in possession of the premises demanded ; and if any “ such action be otherwise brought, the same shall, on motion, be-abated.” — (Revised Statutes, chap. 7, a. 88.) When the writ issues against the landlord and tenant, and is delivered to a proper officer to serve and return, and the officer serves the writ on the tenant, and makes a non est inventus as to the person and property of the landlord, and the writ is returned to court, and entered upon-the docket as against the tenant only, it cannot be supposed thar the action would abate for not joining the landlord. The landlord is joined in the writ, and the plaintiff did what he could to have the writ served on him, but failed. This most assuredly is no cause of abatement within the purview of the above statute. But we have no law to make a landlord, who is joined with his-tenant in the writ, a defendant in the action, if the writ be not served on him in some one of the ways prescribed by statute. In-the case before us,-the writ was- not served on Arden Id. Rallará in any way whatever;. therefore, without his consent, he cannot-be a--defendant in the aetionv The plaintiffs causing his name to be entered on the docket- as defendant, gave the court no jurisdiction over him. And the plaintiftsrsubsequently procuring an order of notice to be published in the newspapers, of the dependency of the action-against him, was equally unavailing; for it is only in a-ease, where the writ has been served on the defendant in his absence, that the court is authorized to make such order ; and notin' a case, where there has been no service at all. — (Revised Statutes; chap. 7, s. 55.) But it is contended by the plaintiffs that Arden 11. Ballard’s appearance in court, and answering to the action, cured all prior defects. It is observable, that A~ H. Ballard' made his appearance, not to plead to the merits ol the action, But merely to be dismissed, because there had been no service of the writ on him. In the case of Wilson vs. Laws, (1 Salk. 59,) the court say, “appearance helps only, when the party comes in- and pleads to issue ; not when the party comes in and challenges-the process upon account of its defects and refer to 1 Ro. 789 ; Bul. 142; 2 Cro. 284; Yelv. 204 In the case of Westall vs. Finch, (Barnes, 406,) “ the defendant moved to stay the proceedings, the process not having been served upon him, but upoiv another person, and obtained a rule to show cause. Upon showing cause, it was- insisted by the plaintiff', that although the process might be served upon a wrong person, yet an appearance being now entered, the defendant was in court, and the mistake was aided. But per. cur. ;.the appearance is entered by plaintiff according; to the statute : this act bv no means corrects the mistake. Let the rule be absolute.” '

Perhaps, it might be difficult to reconcile all the authorities on this subject; but we are inclined to believe, that the appearance of A. H. Ballard, made for the purpose it was, did not cure the defects complained of, and the county court did right in dismissing him. But whether he should have costs allowed him is a question of some importance, as it respects practice.

I know of no case, where a person who had not been served with process, and by accident or mistake his name was entered on the docket, as one of the defendants in the action, has appeared to ask the court to be dismissed with costs. If his name is there by accident or mistake, it should be erased from the docket, without costs to be paid him by the plaintiff. But in the case before us, the name of A. H. Ballard was entered upon the docket by the procurement of the plaintiffs, with a view of making him one of the defendants in the action. Then this entry was not made by accident or mistake, and A. li. Ballard having been notified by the newspapers, that the plaintiffs had this action pending ■against him,had a right to appear, resist their irregular proceedings, and recover his costs.

Thejudgement of the county court is affirmed, with additional costs.  