Boots v. Boots , 84 Ind. 171 ( 1882 )

Woods, J.

Complaint against three makers of a joint promissory note. The summons was returned “ not found ” .as to one of the defendants. The other two, the appellants, joined in a sworn plea of the tenor following, to wit: “ That their co-defendant Isaac G. Boots, who is yet alive, has not been served with any summons in this case; that the sheriff has returned the summons issued herein as to the said Isaac G. Boots ‘ not found/ Wherefore,” etc.

Counsel for the appellant insist that the return of “not found ” operated to abate the action in respect to the defendant not served, and to place the case in the same position as-if no summons had issued against that party to the instrument. Bledsoe v. Irvin, 35 Ind. 293, and Bragg v. Wetzel, 5 Blackf. 95, are cited in support of the plea, but they come short of upholding it. Archer v. Heiman, 21 Ind. 29 Erwin v. Scotten, 40 Ind. 389; R. S. 1881, sections 320, 322. By the first clause of section 320, it is expressly provided that, “ If the action be against defendants jointly indebted on contract, he (the plaintiff) may proceed against the' defendants served;” and, under section 321, the party not served may be proceeded against as if “ alone liable.” As the section stood in the code of 1852, section 641, the party not served might be declared bound by the judgment rendered iii the same manner as if originally summoned. Erwin v. Scotten, supra. The court did not err in sustaining the demurrer to the plea.

• Judgment affirmed, with'costs.