#### Barnes v. Balz.

Opinion delivered March 28, 1927.

*422 Allyn Smith, for appellant.

Kirbv, J.,

(after stating the facts). Appellants insist that none of them was ever served with process in Randolph County, where the fire loss occurred and the suit was brought, and that suit.was not brought against the insurance company of which they were sureties on the bond, and no service was ever had upon it, and that judgment could not be rendered against them there.

The statute does provide that certain causes of action may be brought in the county in which the defendant or one of several defendants resides or is summoned, and also that, where the action embraced in said section of the statute (1176 Crawford & Moses’ Digest) is against several defendants, plaintiff shall not be entitled to judgment against any of them on the service of summons in any other county than that in-which the action is brought, where no one of the defendants is summoned in that county , or resided therein at the commencement of the action, unless judgment is recovered against the defendant upon whom service was had in the county. Tf the defendant summoned in another county appears, Iioav-ever, and makes no objection to the proceeding against him before judgment rendered, he is deemed to have waived his right to do so.

The statutes also provide that actions against insurance companies of the kind herein may be brought in any county in the State Avhere the loss occurs, and that the sureties on the bond given by the company may be joined in such action. This suit was not brought in the first instauce against either the sureties on the bond of the South Arkansas Mutual Fire, Association nor against it. *423The Soutli Arkansas Mutual Fire Association was never made, or attempted to he made, a party to this suit, and a motion to make additional parties as an amendment to the complaint was filed, and these appellants, residents of Union County, sureties on the hond of said company, and also the sureties on the bond of the Modern Mutual Fire Insurance Company, were made parties defendants, and brought into court.

They filed a general demurrer to the complaint and amendment, and, without Avaiving any rights thereunder, filed an answer, denying the execution of the insurance bond or any liability to the plaintiff on any account Avhat • ever. The demurrer Avas thereupon confessed and sustained, and the plaintiff giA-en thirty days to amend and defendants thirty days in Avhich to ansAver the amended pleading. No amendment to the pleadings Avas filed, Iioav-ever, the'attorney for defendants Avas alloAved to Avith-draiv from the case, the suit Avas dismissed as to the Modern Mutual Insurance Company, the original defendant and all its bondsmen, and on the same a .judgment rendered by default, and Avithout any exfidence introduced against these appellants, sureties on the bond of the old South Arkansas Fire Insurance Association.

The court having determined by order, on confession of the demurrer, that the complaint di’d not state a cause of action 'against defendants, and granted leave to amend, could not thereafter, Avithout overruling and setting aside such order, proceed to trial on the original complaint adjudged insufficient. No amendment having been made or proposed under permission granted therefor, the complaint should have been dismissed. Certainly the court could render no judgment by default thereon Avithout -proof against these parties to the suit, Avhose answer was properly filed, denying all the material allegations of the complaint. Hurst v. Davis, 291 S. W. 799.

The verification of the complaint in the instant ease, the action not being- founded upon an account, nor the affidavit in form such as is required to prove an account (<§. 4200, CraAA-ford & Moses’ Digest), and it not beina' *424in form an affidavit on the merits that no good and valid defense existed to the action, made no other or greater proof necessary on the side of the adverse party, the defendants. (§ 1214, C. & M. Digest).

Since appellants, the sureties on the South Arkansas Mutual Fire Association bond, could not be made parties to a suit over their objection in any county but that of their residence, except upon their being, joined in the suit against their principal and maybe its successor in liability, they would have had this right to object after the non-suit or dismissal of the action as against the defendant, Modern Mutual Insurance Company, and the sureties on its bond, to any judgment being rendered against them at all. ■ : ;•••'•*!

For the errors committed in rendering' judgment by default against them on a complaint already adjudged insufficient as not stating a cause of action, and without the introduction of testimony to support the claim over the allegations of the answer denying specifically and generally the allegations of the complaint and any liability thereunder, the judgment must be reversed, and the cause remanded for a new trial. It is so ordered.