BRATON BUSHEE, plaintiff in error, vs. JOHN WRIGHT, defendant in error, 1 Bur. 112

Opinion of the Court, by Judge Irvin: This case was commenced by declaration in the District Court of Grant county, by John Wright, the defendant in error, against Braton Bushee, the plaintiff in error, and Cyrus Harper, and after-wards, on a change of venue, it was taken to the county of Iowa. Process seems to have been served on but one of the defendants, and as to the other, returned not found. By “

an act concerning proceedings in courts of record,” a declaration may be the first process, and if a copy of it, together with the rule that the defendant plead within twenty days after service of the same, be served personally on said defendant, and he should fail to plead, a default is to be entered against him. In this case, Bushee, the only one of the defendants served with process, did not so plead, and a default was entered against him, to take off which, he appeared and made a motion at the next District Court, which motion was overruled. The principal question, and certainly the first in the cause is, did the court err in so deciding? By the sixteenth

section of said act it is provided, that “upon due proof of the service of a declaration personally on all the defendants in. the cause, their appearance shall be entered by the clerk of the court, and their default may be entered for not pleading, and the same proceedings may be had against them in all respects as if they had appeared.” From the reading of the law, all must be personally served with process.

In the State of Now York, there was a statute with similar provisions,' and the court (see 7 Wendell, 517, and 9 Wendell, 433,) held, “ that in a suit commenced by declaration against several defendants, the plaintiff could not proceed until all the defendants were served with the declaration.” The court is of opinion, that when declaration'is the first process, and there be more than one defendant, process must be served personally on all, and that it is error to take a default when only a part of the defendants are served with process.

The default taken in this case, being taken without authority of law, should have been set aside, and the District Court erred in overruling the motion made to that effect. Burnett and Moses M. Strong, for pl’tff iri error. Dunn, for def’t in error. From the uncertainty in the assignment of the error, (the only one remaining undisposed of by the point already noticed,) the court does not deem it necessary to decide any thing in relation to it, particularly as it relates to matters about which the authorities are numerous.

It is the opinion of the court, that for the error noticed, the judgment of the District Court be reversed with costs, and that the same be so certified, that such other and further proceedings may be had therein asjto lawhnay?appertain.