Merrill E. Rattan et al., plaintiffs in error, v. Caleb Stone et al., defendants in error, 3 Scam. 540

Semple, Justice, delivered the opinion of the Court: This was an action of assumpsit, brought by John B. Glover and Caleb Stone against Merrill E. Rattan and James Davis, in the Pike Circuit Court. The summons was made returnable to the fourth day of the April term, 1838, and executed on Rattan alone. At the July term, on motion of the defendant’s attorney, the-Circuit Court ordered the writ to be quashed. The cause was then continued, and an alias summons awarded. The alias summons was executed on James Davis; Merrill E. Rattan not found in the county.

At the September term, 1838, judgment was rendered against both of the defendants, for the damages assessed by reason of the non-payment of the note sued on, and costs of suit. The cause was brought up by writ of error. The assignment of error questions the legality of continuing the cause, and ordering an alias summons to be issued after the original summons was quashed, and also of entering judgment against both defendants, when only one had been served with process.

This Court is of opinion that as the original summons was made returnable to the fourth day of the term, instead of the first day, as required by the statute, it was void, and not merely voidable. The Circuit Court decided correctly in ordering it to be quashed. But instead of awarding an alias summons and continuing the cause, a final judgment ought to have been given against the plaintiffs for costs. The alias summons, however, may be considered as the commencement of a new suit.

The words “ as you have been before commanded,” may be considered as surplusage, and the summons might have been amended in the Circuit Court, by striking out those words. This last summons having been served on one of the defendants only, it was erroneous to enter judgment against both. The judgment is reversed, with costs, and the cause remanded for further proceedings. Judgment reversed