Sanders v. McDowell , 5 Miss. 9 ( 1839 )

Per Curiam.

The action was instituted against the plaintiffs in error on a promissory note. Two of them were served with process, but the other was not. The judgment was by default against the defendants generally. Execution issued against the two who were served with process, and they gave a forth-coming bond which was forfeited, before the writ of error sued out. The question is whether the judgment is erroneous, and if so, can it be reached after the forfeiture of the bond.

We should have no hesitation in pronouncing the judgment erroneous, if a forth-coming bond had not been given. The bond however, precludes the parties who gave it, and as the party who was not served with process did not join in the bond, there being no execution against him, we must regard him as free from the operation of the judgment, and the case must be dismissed as to the others.