#### Alexander Frazier, Plaintiff in Error, v. William Resor et al., Defendants in Error.

ERROR TO PULASKI.

A judgment will be sustained against one of two parties not served, if the pleadings show that such party appeared; as where the word defendants is used, unless mistake or want of authority is shown. The proper mode of pleading for one defendant, in such case, is indicated.

This was an action of assumpsit, brought in the Circuit Court of Pulaski county, by Wm. Resor & Go., against Ezra Dreher and Alexander Frazier. .

A capias issued for Dreher and Frazier, returnable at the April term, 1858, which was returned, indorsed, “ Served by reading to one of the within named, to wit: Alexander Frazier, December the 31st, 1857.”

The declaration complains of Dreher and Frazier as in custody, etc., of a plea of trespass on the case on promises.

Frazier, by attorney, moved to discharge bail, which motion was sustained.

A demurrer to the declaration was sustained, and leave to amend declaration was granted.

*89A demurrer to the amended declaration was overruled, and afterwards, on the same day, judgment against both defendants was rendered by default for $423.50, damages and costs.

A motion to set aside default, overruled. Frazier prayed an appeal, which was allowed. The pleadings and other proceedings for the defendant, are shown by the opinion.

W. Hunter, for Plaintiff in Error.

R. S. Nelson, for Defendants in Error.

Caton, C. J.

This was an action of assumpsit against two defendants, one of whom, only, was served with process. Judgment was rendered against both defendants for want of a plea, after a second demurrer to the declaration had been overruled, and the only question is, whether the appearance of the defendant not served, had been entered. The record shows that it had been, and there is nothing in the record to show that it was entered inadvertently and without authority, by the attorney who also appeared for the other defendant.

The first demurrer is entitled with the names of both defendants, and not with the name of the defendant served, impleaded with the one not served, as is the proper mode when the pleading is for one party only. In the introductory part of the demurrer the word defendant, in the singular, is used, but without saying which defendant appears. And, in the conclusion, both defendants pray judgment as follows : “And they, the said defendants, pray judgment,” etc., using the plural pronoun, noun and verb. And the special assignment of causes of demurrer, are also by both defendants, thus: “ And the defendants assign the following cause, to wit.” Here again we see the plural noun and verb. To say that here is not an appearance by both defendants, is a naked assertion against the simple fact. Had this been done by the attorney by mistake, and without authority, it should have been shown on the motion to set aside the default. But when that motion was made, no such pretense was suggested, or cause urged.

The judgment was properly entered against both defendants, and it must be affirmed.

Judgment affirmed.