
    Hulme v. Janes, Adm’r.
    Suit was brought against three defendants. Two accepted service; the third was not summoned, and tile suit was not discontinued ns to him. Judgment was entered by default against the defendants generally. Held, That the judgment was void as against, the defendant not summoned; and as it was indivisible in its nature, it was necessarily void as against the other defendants.
    Error from Bowie. In this case suit was commenced against Burtridge, Peters, and Ilulme. The two latter accepted service. The former was not summoned by citation or publication. Judgment was entered by default against the defendants generally. The suit was not discontinued as against Burtridge, and for this error the judgment was sought to be reversed.
    
      Mills §- Murray, for plaintiff in error.
    I. Tile court below erred in rendering judgment against the defendants, as there was no service on Burtridge or discontinuance as to him.
    H. The judgment is void as to Burtridge, and as a judgment cannot be divided, it therefore necessarily follows that the judgment is void as to Huime and Peters.
    Pirkey, for defendant in error.
    I. Ilulme, plaintiff in error, acknowledged service in the writ, which was equivalent to an acknowledgment of judgment. Hot being injured by the judgment, he cannot take advantage of it. (Smith & Jones v. Gorlach el ul., 2 Tex. R., 424.)
    H. But there is no error. Burtridge was not within the jurisdiction of tlie court. There was therefore no necessity to make him a party to the suit. Consequently the judgment most he understood as rendered against tiiose only who were duly served. (Morgan’s Executrix, &c., v. Morgan, 2 Bibb R., 3S8.) The word defendants can only mean those who were at the time defendants. (Ib., 4 II. & Hun. R., 293.)
    It is respectfully suggested as a case of delay.
   Hemphill, Ch. J.

The judgment is void as against Burtridge, and as it is indivisible in its nature it is necessarily void as against the other defendants.

The suit should have been discontinued, under the provisions of article 704 of the Digest, and judgment against the others would have been valid. Judgment reversed and cause remanded for further proceedings.

Judgment reversed.  