Society for propagating the Gospel in foreign parts v. Ballard

Baylies, J. delivered the opinion of the Court. — The statute requires, that ejectment should," in all cases be as well against the “ landlord or landlords, if any there be, as against the tenant, or [122] «' tenants in possession of the premises demanded ; and if any “ such action be otherwise brought, the same shall, on motion, be-abated.” — (Revised Statutes, chap. 7, a. 88.) When the writ issues against the landlord and tenant, and is delivered to a proper officer to serve and return, and the officer serves the writ on the tenant, and makes a non est inventus as to the person and property of the landlord, and the writ is returned to court, and entered upon-the docket as against the tenant only, it cannot be supposed thar the action would abate for not joining the landlord. The landlord is joined in the writ, and the plaintiff did what he could to have the writ served on him, but failed. This most assuredly is no cause of abatement within the purview of the above statute. But we have no law to make a landlord, who is joined with his-tenant in the writ, a defendant in the action, if the writ be not served on him in some one of the ways prescribed by statute. In-the case before us,-the writ was- not served on Arden Id. Rallará in any way whatever;. therefore, without his consent, he cannot-be a--defendant in the aetionv The plaintiffs causing his name to be entered on the docket- as defendant, gave the court no jurisdiction over him. And the plaintiftsrsubsequently procuring an order of notice to be published in the newspapers, of the dependency of the action-against him, was equally unavailing; for it is only in a-ease, where the writ has been served on the defendant in his absence, that the court is authorized to make such order ; and notin' a case, where there has been no service at all. — (Revised Statutes; chap. 7, s. 55.) But it is contended by the plaintiffs that Arden 11. Ballard’s appearance in court, and answering to the action, cured all prior defects. It is observable, that A~ H. Ballard' made his appearance, not to plead to the merits ol the action, But merely to be dismissed, because there had been no service of the writ on him. In the case of Wilson vs. Laws, (1 Salk. 59,) the court say, “appearance helps only, when the party comes in- and pleads to issue ; not when the party comes in and challenges-the process upon account of its defects and refer to 1 Ro. 789 ; Bul. 142; 2 Cro. 284; Yelv. 204 In the case of Westall vs. Finch, (Barnes, 406,) “ the defendant moved to stay the proceedings, the process not having been served upon him, but upoiv another person, and obtained a rule to show cause. Upon showing cause, it was- insisted by the plaintiff', that although the process might be served upon a wrong person, yet an appearance being now entered, the defendant was in court, and the mistake was aided. But per. cur. ;.the appearance is entered by plaintiff according; [123] to the statute : this act bv no means corrects the mistake. Let the rule be absolute.” ' Perhaps, it might be difficult to reconcile all the authorities on this subject; but we are inclined to believe, that the appearance of A. H. Ballard, made for the purpose it was, did not cure the defects complained of, and the county court did right in dismissing him. But whether he should have costs allowed him is a question of some importance, as it respects practice. I know of no case, where a person who had not been served with process, and by accident or mistake his name was entered on the docket, as one of the defendants in the action, has appeared to ask the court to be dismissed with costs. If his name is there by accident or mistake, it should be erased from the docket, without costs to be paid him by the plaintiff. But in the case before us, the name of A. H. Ballard was entered upon the docket by the procurement of the plaintiffs, with a view of making him one of the defendants in the action. Then this entry was not made by accident or mistake, and A. li. Ballard having been notified by the newspapers, that the plaintiffs had this action pending ■against him,had a right to appear, resist their irregular proceedings, and recover his costs. Thejudgement of the county court is affirmed, with additional costs.