
    [Pittsburg,
    September 9, 1824.]
    LATSHAW and others against STEINMAN.
    IN ERROR.
    The'court below may, in tbeir discretion, amend a judgment by default; and this court will not inquire whether they have exercised their discretionary po wer ju. diciously.
    If the plaintiff declare against six defendants, and take judgment against three only, without noticing the others, it is error.
    The declaration ought to be against those who were summoned, with an averment, that process had issued against the others, who were not to be found.
    Writ of error to Allegheny county.
    The plaintiff below, John F. Steinman, brought an action of debt on bond against Christian Latshaw, and five others. The sheriff returned, that he had summoned three of the defendants, neither of whom appearing, judgment was entered by default, against the defendants, generally, the plaintiff having declared against all six. The plaintiff afterwards moved the court for an order on the prothonotary, to amend the entry of the judgment, by entering judgment against the three defendants only, who were summoned. This motion was grantéd, and the judgment amended, though opposed by the counsel for the defendants, who took out a writ of error.
    
      
      Fetterman and Baldwin, for the plaintiffs in error, argued,
    1. That the judgment, as originally entered, was erroneous. A joint judgment, against several defendants, one of whom is not summoned, is bad. 14 Fin. 633. 6 Serg. fy Rawle, 19.
    2. The judgment being by default, the court had no power to amend it. Collins v. Gibbs, 2 Burr. 899. 1 Sell. Pr. 52S. Thompson v. Musser, 1 Ball. 465.
    
      3. The judgment as it stands, is still bad, being against three defendants only, while the declaration is against all six.
    
      Biddle, for tbe defendants in error, contended,
    1. That the judgment being entered generally, was to be considered as a judgment only against those who were summoned. In Moss v. Moss’s Administrator, 4 Henry and Munf. 312, the declaration was against several defendants, some of whom were not taken. The others appeared, pleaded and went to trial, and there was a verdict and judgment against those who appeared. The declaration in this case was filed when the writ issued, agreeably to the act of assembly, when it could not be known, that all the defendants could not be summoned.
    2. The court below had a right, in their discretion to amend the judgment, and this court will not inquire whether they have exercised a discretionary power rightly. Ordroneaux v. Prady, 6 Serg. S; Rawle, 510. Clymer v. Thomas, 7 Serg. fy Rawle, 180.
    
      3. The declaration may be supported under the act of assembly which permits it to be filed before the return of the writ.
   Per Curiam.

It has been contended by the plaintiffs in error, that the Court of Common Pleas had no right to amend the judgment; but we are of opinion, that court had a right in their discretion, to order the amendment, and whether that discretion was judiciously exercised, is what is not to be inquired of in a court of error. The record stands thus, then: The plaintiff has declared against six defendants, and taken judgment against three only, without noticing the others. This is error. According to our practice, the declaration might have been against the three who were summoned, with an averment, that process was issued against the three others who were not to be found, &e. But this declaration avers, that all six of the defendants were summoned; and the action being joint, it was not competent to the plaintiff to take judgment against three only, and discharge the others.

It is the opinion of the court, therefore, that the judgment should be reversed.

Judgment reversed.  