Kite v. Bonafield

Opinion by

Greene, J.

This was an action of debt in the district court, by Bonafield against Kite and Welch. The summons appears to have been served upon Welch only, but judgment was rendered against both defendants-But it is claimed, that although there was no service upon Kite, the record shows that there was an appearance for him by counsel. The only evidence of such appearance, is in the judgment entry, in these words : “ And now come the parties, by their attorneys, and submit this cause to the court,” «fee. It is evident that the parties may have appeared and submitted their cause to the court without the appearance of Kite. The plaintiff" and defendant Welch, would constitute “parties,” who may have appeared by their attorneys, and still Kite may have had no notice of the proceedings against him. Had the records shown that the defendants appeared by their attorneys, the judgment below would not be disturbed. In the absence of service and of such a showing, the judgment as to Kite is manifestly erroneous and must be reversed at cost of defendant in error, but the judgment against Welch is affirmed.

C. W. Slagle and Geo. Acheson, for plaintiffs in error. Charles Negus, for defendant.

Judgment reversed, as to Kite.