
    Neosha M. Mills, Defendant in Error, vs. Walter Teel et al. Plaintiffs in Error.
    
      Opinion filed February 16, 1910.
    
    Appeals and Errors—order of severance must be entered before cause is taken. Where the co-plaintiffs in a writ of error who have failed to appear and assign error have been summoned, an order of severance must be obtained as to them before the case is taken under advisement, and if the case is inadvertently taken under advisement through an error of the clerk in noting the case as ready though no order of severance had been entered, the order taking the cause will be set aside.
    Writ oE Error to the Circuit Court of Schuyler county; the Hon. Guy R. Williams, Judge, presiding.
    B. O. Willard, and E. A. Jarman, for plaintiffs in error.
    D. E. Mourning, J. F. Floyd, and E. L. Mills, for defendant in error.
   Per Curiam :

The bill in this case was filed by Neosha M. Mills, making Nyna Teel and six other parties defendants. A decree was entered in the circuit court in accordance with the allegations and prayer of the bill. Nyna Teel thereupon sued a writ of error out of this court and joined with her as co-plaintiffs in error her co-defendants in the bill. They failed to assign error and process as to them was issued out of this court October 12, 1909. It was duly served upon four of them, and as to the other two publication was made, they being non-residents.

No judgment of severance has been obtained as to the parties who have been summoned and failed to appear and assign errors. This was indispensable in order that the case might be ready to be taken under advisement. (Bellinger v. Barnes, 221 Ill. 240; McIntyre v. Sholty, 139 id. 171.) The court’s attention was not called to the condition of the record but it was noted on the docket by the clerk as ready, and it was taken under advisement without being at issue as to all the plaintiffs in error and without any order of severance having been made. In the brief of plaintiff in error she asks a judgment of severance. This, as we have said, can only be entered before cause is taken.

The order taking the case under advisement will be set aside and the parties will be left to take such further proceedings as they shall deem proper.

Order taking cause set aside.  