
    CASE 87 — PETITION ORDINARY
    FEBRUARY 26.
    Ward vs. George.
    APPEAL FROM FLOYD CIRCUIT COURT.
    An action was brought against three defendants for trespass. Process was served on two of the defendants in the county in which the action was brought, and on the other defendant in another county. On the trial the jury found for the two defendants and against the one who was served with process in ■another county. On motion of this defendant, before the judgment of the court was entered on the verdict of the jury, notwithstanding he had appeared, answered, and defended, the court ought to have dismissed the action as to him. (Cfivil Code, section 108; Fernoldvs. Speers, 3 Met., 460.)
    J. R. Botts, For Appellant,
    CITED—
    
      Civil Code, secs. 106, 108, 109.
    14 Ben. Mon., 647; Pottinger vs. Mayfield.
    3 Metcalfe, 459.
    John L. Scott, On same side,
    CITED—
    
      Civil Code, sec. 108.
    3 Metcalfe, 460; Fernold vs. Speers.
    
    James E. Stewart, For Appellee,
    CITED—
    • Civil Code, sec. 108.
    13 Ben. Mon., 167; Kennedy's adm’r vs. Davenport, <fc.
    
   JUDGE WILLIAMS

delivered the opinion of the court:

Appellee sued three defendants as joint trespassers as to personal property, in the Floyd circuit court, had service of process on two of them in Floyd county, and on Ward in Carter county. The jury found for the two defendants served in Floyd and against Ward. After the verdict, and before judgment, Ward moved to dismiss the case as to himself, because not served in Floyd, and no judgment could be rendered against any defendant served in said county; which motion was overruled and judgment rendered against him on the verdict, and -from which he has appealed.

This is a case within the provisions of section 108, Civil Code; and though the defendant appeared and filed his answer, yet, when it was determined that no judgment could be rendered against any defendant served with process in Floyd, he did not fail to object, before the judgment, to its proceeding against him, but availed himself of the earliest practicable moment after this essential fact had been ascertained to so object.

This construction was given to this section of the Code in Fernold vs. Speers (3 Met., 460).

It being apparent from the verdict that no judgment could be rendered against any defendant served in Floyd, appellant’s motion should have been sustained. He did not waive this right by answering; for, until the verdict, it could not be ascertained whether those defendants served in Floyd were real or nominal parties — one object of the Code being to prevent a change of jurisdiction by making nominal parties.

Wherefore, the judgment is reversed, with directions to set aside the judgment and sustain appellant’s motion.  