#### Peter Cristofano and Vincent Di Cicco for use of Peter Christofano, Defendants in Error, v. William Anton and James Anton, Plaintiffs in Error.

Gen. No. 21,227.

(Not to be reported in full.)

Error to the Municipal Court of Chicago; the Hon. Joseph P. Rafferty, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.

Affirmed.

Opinion filed February 24, 1916.

Statement of the Case.

Action on account stated and for goods sold and delivered by Peter Cristofano and Vincent Di Cicco for use of Peter Christofano, plaintiffs, against William Anton and James Anton, defendants. From a judgment against both defendants, James Anton brings error.

A third codefendant, Nick Anton, was not served with process. While the statement of claim in the Municipal Court showed the plaintiffs to be “Peter Cristofano and Vincent Di Cicco for the use of Peter Christofano,” the summons merely called defendants to answer unto “Peter Christofano.” Defendant, who appeals, appeared and filed affidavits.

W. A. Morrow, for plaintiff in error James Anton.

*152Abstract of the Decision.

1. Judgment, § 196 * —when judgment may he entered against defendants served. The trial court may enter judgment against two defendants, in action on account stated and for- goods sold and delivered, notwithstanding that a third codefendant was not served with process.

2. Municipal Coubt of Chicago,—when question of variance between statement of claim and summons cannot be raised. Variance between a summons in an action in the Municipal' Court of Chicago, which directs defendants to answer unto “Peter Christofano” and a statement of claim which alleges plaintiffs to be Peter Cristofano and one other for the use of Peter Christofano, cannot be raised after defendants have filed affidavit of merits nor after the finding by motion in arrest of judgment.

Laurence M. Fine and Edward Drobnis, for defendants in error.

*

See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

Mr. Presiding Justice Gridley

delivered the opinion of the court.