The President, Directors and Company of the State Bank of Illinois, plaintiffs in error, v. Thomas Wilson et al. defendants in error.
Error to Schuyler.
A writ of error was prosecuted against three defendants, and the scire facias was returned served on one of them only, and non est inventus as to the two others. A rule was obtained upon the defendant served to join in error, and he moved to have the rule vacated: Held, that before the plaintiffs would be entitled to the rule, they must bring all of the defendants into Court, either by the service of the scire facias, or a publication against such as were non-residents, or could not be found.
A cause must be heard as between all of the parties to a writ of error.
In this case, Hart Fellows, one of the defendants in error, by his counsel, O. H. Browning & N. Bushnell, moved the Court to vacate a rule upon him to join in error, for the reason that all of his co-defendants were not before the Court. The motion was resisted by W. A. Minshall, in behalf of the plaintiffs in error.
The Opinion of the Court was delivered by
Treat, J.
This writ of error is prosecuted against three defendants, and the scire facias has been returned, served on one of them only, and non est inventus as the two others. The plaintiffs have obtained a rule on the defendant served to join in error, which rule he now asks to have vacated. Before the plaintiffs are entitled to a rule for joinder in error, they must bring all of the defendants into Court, either by the service of a scire facias, or a publication against such as are nonresidents, or cannot be found. The cause must be heard as between all of the parties to the writ of error. The motion must be granted, and the order entered for a joinder in error will be vacated.
Motion allowed.