Boyd v. Baynham , 24 Tenn. 386 ( 1844 )

Turley, J.

delivered the opinion of the court.

This is an action of debt commenced by Baynham against Hopson, Boyd and Young. Process was served upon Boyd and Young, and returned as to Hopson, “not to be found in my county.”

The declaration is filed against the three, but a noli prosequi is afterwards entered as to Hopson. Pleas, payment and set-off ; replication and issue.

The judgment is headed, “John Baynham vs. George B. Hopson, George. C. Boyd and Henry Young.” The verdict is, that the plaintiffs recover of the defendants: and the question now is, whether George B. Hopson is a defendant, against whom the judgment is thus rendered. And we think he is not. He was dropped in the proceeding by a nol. pros, as the plaintiff might well do before pleas; and although his name is inserted in the margin of the judgment, yet he is not mentioned by name in the body of the judgment, he not having been served with process; having never entered his appearance, he is no party to the record, and a judgment in so many words, “against the defendants,” cannot be made to embrace him; but must be held as only in force and obligatory upon the defendants upon whom process was served, and who appeared and defended, viz, Boyd and Young.

There being no judgment against Hopson, there is no error in that against Boyd and Young; and the same must be affirmed.