
    William M. Smith et al., plaintiffs in error, v. John B. Silvis, defendant in error.
    1. Finding: Judgment. A judgment must conform to the finding. Finding against A. and B. will not sustain a judgment against A. and 0.
    2. Issues. The issues properly presented by the pleadings must be decided either by finding by the court or verdict of a jury, before judgment can be rendered against the defendant.
    3. Default. A defendant in default for want of an answer should be defaulted, and the same entered on the journal before judgment is rendered against him.
    Note. Where the record of a judgment shows that ail of the defendants have been notified of the pendency of the action, as required by law, the finding will be conclusive that notice was duly given, until the contrary is clearly established. Singleton v. Boyle, 4 Neb., 414. If the finding be vague, uncertain, or indefinite, it will not maintain a judgment. Spriekv. Washington County, 3 Neb., 255.-An application to open a default is addressed to the sound discretion of the court, and the appellate court will not interfere unless there is a clear abuse of that discretion. Orr v. Seaton, 1 Neb., 106. A party in default may be permitted to answer, at any time before j udgment is rendered, and the court must permit the answer to be filed where it is apparent that there is a meritorious defense to the action. Blair v. West Point Manufacturing Co., 7 Neb., 156 — B.ep.
    
      Error from the district court for Adams county. It was an action on a promissory note for $700, given by William L. Smith & Co., dated June 15, 1874. Judgment having been rendered against him, Smith brought the cause up by petition in error. • Further facts appear in the .opinion.
    
      Ash Scofield, for plaintiffs in error. -
    The summons should contain in itself a complete notice of the suit, and unless issued against a firm, in the firm name, it should contain the full Christian and surnames of each defendant named in the petition, and when more than one defendant is sued it should be definite and certain as to the number of the defendants. Gen. Statutes Neb., 533, section 64, 527, section 24. Franklin v. Talmadge, 5 Johns., 84. Wade on Law of Notices, sec. 1152, 491. Bendy v. Boyce, 37 Tex., 443. Anderson v. Brown, 16 Tex., 554. Battle v. Eddy, 31 Tex., 368. Bortwood v. Wilburn, 33 Tex., 713.
    The service of the summons is fatally defective, for the following reasons. 1st, The officer’s return does not show that it was served by a copy left at the usual place of the business of said firm within the county of Adams, with one of the members of said firm, or clerk or general agent thereof. Gen. Statutes Nebraska, 527, sec. 26. 2d, The officer’s return is vague, indefinite, and uncertain. It does not show which one of the five defendants named in the petition of John B. Silvis the service was made upon; the words et al. in said return mean and others, and cannot be regarded as surplusage, and they render the whole return indefinite, uncertain, and void. Gamble v. Warner Wife,. 16 Ohio, 372.
    The defendants in the court below who had appeared in the case, viz., Charles Wells and George Wells, were ready for trial on the 15th day of February, and the plaintiff in the court below made a motion to continue the case 'until the 18th, which motion was opposed by defendants, and plaintiff supported his motion by affidavit. Whereupon the court adjourned the case and rendered judgment against all the defendants for ten dollars, when he should have rendered judgment against, the plaintiff. This was a grave error, for which the judgment should be reversed. Laws of Neb., 1875, 63, sec. 1. Smith v. Lewis, 20 -Wis., 369.
    
      B. F. Smith, for defendant in error.
   Cobb, J.

The summons in this cause is against “ William L. Smith et al.” The petition is entitled John B. Silvis, plaintiff, vs. William L. Smith, Charles Wells, George Wells, and Leroy S. Winters, partners doing business under the firm name of William L. Smith & Co., and H. P. Handy, defendants. In the stating part of the petition all of the above named persons except Handy are named and charged to have been partners at the time of the execution and delivery of the note sued on. That they made and delivered the note in their firm name to Handy, who afterwards, and before maturity, waived protest and endorsed the note to Dorr and ITeffleman, who endorsed the same without recourse to the plaintiff, &c.

The only service endorsed on the summons is as follows; “State of Nebraska, county of Adams, ss. I hereby certify that on the 6th day of June, 1877,1 served the within writ of summons on the within named W. L. Smith et al. by delivering him personally a true and certified copy of the original summons with all the endorsements thereon as required by law.” Signed by the sheriff.

Charles Wells and George Wells appeared and put in an answer in the nature of a plea in abatement, denying tbe partnership and also denying tbe making of tbe note. No reply of any kind was made to tbis answer.

William L. Smith made a special appearance for tbe purpose alone of questioning tbe jurisdiction of tbe court, and moved for a dismissal of tbe suit as to him for insufficient service and other reasons. His motion was overruled. He made no further or other appearance in tbe case nor does bis default appear to have been entered.

On tbe fifteenth of February tbe plaintiff filed an affidavit and motion for continuance until tbe eighteenth of tbe same month, on account of tbe absence of a material witness on bis part, which motion tbe court allowed on tbe condition of tbe payment of ten dollars costs by the defendants. Tbe act of Feb. 25, 1875, authorizes tbe court in proper cases to impose tbe payment of a sum not exceeding ten dollars, together with tbe costs of tbe term, as tbe terms upon which tbe trial may be postponed, but tbe money is to be paid by tbe party asking tbe postponement to tbe adverse party. Laws 1875, p. 63.

Tbis record finally contains tbe following finding and judgment: “And now on tbis day tbis cause come on to be beard before tbe court upon pleadings and proof in said cause contained, and tbe court after bearing tbe evidence doth find that there is due the said plaintiff from tbe said defendants, William L. Smith and George Wells, on tbe note in said plaintiff’s petition described, tbe sum of nine hundred and forty-five dollars. It is further considered and adjudged by tbe court now here that tbe said plaintiff have and recover of and from tbe said defendants, William L. Smith and Charles Wells, tbe said sum of nine hundred and forty-five dollars, tbe sum as aforesaid found due, together with bis costs, taxed at $-.”

There is no bill of exceptions in this case, so we cannot tell what the testimony was. It is probable that there was evidence ¡moving that one of the Wellses was a partner of William L. Smith & Co., but which one of them we cannot learn from this record, the finding being against George and the judgment against Charles, and as there was no finding against Charles Wells the judgment as to him must be reversed.

As to William L. Smith, if he was ever in court, which is doubtful, he has a right to know who his partner is.

The question of partnership was fairly presented by the answer of the Wellses and it was error in the court to dispose of the case as was done without a finding on that point. Mason v. Embree, 5 Ohio Repts., 276. Headley v. Ruley, 6 Ohio Repts., 524. It was also error to render judgment against Smith without first defaulting him for want of an answer.

Eor these reasons the judgment is reversed and the cause remanded for further proceedings.

Reversed and remanded.  