State ex rel. Lewis v. East

Niblack, C. J. — Action hy the State, on the relation of Phcebe Lewis and Emily Sutherland, against Dougan Jones as principal, and John R. East, Drury J. Hodges and William Butcher as sureties, upon an executor’s bond. Summons was not served on Jones and he failed to appear to the action. Service having beenhad upon the remaining defendants, they appeared and answered the complaint. Issue being joined, there was a trial by the court .and a finding and judgment for the defendants. The State has appealed to this court and assigned error against all the defendants who appeared to the action. ' Notice of the appeal was served ■on East and Butcher, but was returned “not found” as to Hodges, and as to him no notice of any kind has been given of the taking of this appeal. Afterwards, at the May term, 1882, of this court, the cause was submitted upon default of the appellees. East and Butcher have moved to dismiss the appeal for want of notice to Hodges. Without notice to or an appearance by Hodges, this appeal remains unperfected, and all the parties to the judgment appealed from are not before this court. The cause is not, therefore, in a condition to be heard by us on its merits. This subject has been more elaborately discussed in the case of Hunderlock v. Dundee Mortgage and Trust Investment Co., ante, p. 139, and upon the authority of that case the motion to dismiss this appeal must be sustained. The appeal is accordingly dismissed, at the costs of the relators of the appellant.