
    S. S. Prentiss vs. W. P. Mellen, Administrator.
    It is error to take judgment against a party to a suit, who has not been served ’ with process, and for whom no special appearance has been entered.
    This case is brought by writ of error, from the Madison circuit court.
    The abstract of Mr. Smedes sufficiently states the case.
    
      W. C. Smedes, for plaintiff in error.
    The declaration in assumpsit, is filed under the law of 1837, authorizing joint suits.
    The writ, directed to the sheriff of Madison, is returned, “ not found.”
    The writ to Hinds, is executed upon the defendant, A. G. McNutt.
    The writ to Warren, is not returned at all.
    A. G. McNutt plead non assumpsit.
    The plaintiff entered a discontinuance as to the defendants, Dawson and McNutt, and took judgment by default, against Prentiss.
    Mr. Prentiss had not been served with process, and had entered no special appearance: he was not before the court below when the judgment was rendered, and, therefore, no party to the suit. With what propriety judgment was rendered against him we cannot perceive, and we presume this court will not hesitate to set it aside.
   Mr. Justice Thacher

delivered the opinion of the court.

This suit was instituted in the circuit court of Madison county, at its April term, A. D. 1838, by William P. Mellen, administrator, &c., of James Patterson, deceased, against Joseph Dawson, Seargent S. Prentiss, and Alexander G. McNutt. A capias ad respondendum was issued against all the defendants, directed to the sheriff of Madison county, and returnable at the term aforesaid, with orders not to be executed upon the defendants, Prentiss and McNutt, which was returned by the sheriff, non est inventus, &c. A duplicate capias ad respondendum was issued against all the defendants, directed to the sheriff of Hinds county, and returnable at the term aforesaid, with orders not to be executed upon the defendants, Prentiss and Dawson, which was returned by the said sheriff, “ executed,” &.c.

The defendant, McNutt, by attorney, plead non assumpsit to the action.

The cause being called, the plaintiff discontinued his action as to the defendant, McNutt, and' the court below gave judgment by default, against the plaintiff in error, Prentiss.

It is assigned for error, that the defendant be'low, Prentiss, was not served with process, and that no special appearance was entered by or for him. The record nowhere shows him to have been before the court at the time judgment by default was taken against him. This is manifestly error.

Judgment below must be reversed and the cause remanded.  