ON APPLICATION FOR REHEARING.
Denied March 24, 1915.
Per Curiam.In an application for a. rehearing it is suggested that “the judgment, if any, should have been against all of the parties who are not shown by the record to have been lawfully excluded; that there is no showing in the record for the exclusion of O. M. Sweat and F. L. Sweat, and W. J. Hillman ivas dismissed by the court;” that there was “a fatal variance between the declaration and the proofs and entitled all the defendants to be dismissed.” Section 1607 of the General Statutes of 1906, provides that “where suit is brought against two or more defendants, and the summons is served on one or more, but not on all, and the sheriff returns that the defendant not served does not reside in the county, the plaintiff may proceed against the defendant served, noting the fact of non-service on the absent defendant, and if he recover judgment, it may be entered up against the defendant served, noting the fact of non-service as aforesaid, which may be enforced against the property of the defendant against whom the judgment is entered, and the joint property of the defendants named in the writ.”
The return on the summons is that it was served on R. H. Paul and was unexecuted as to C. M. Sweat and F. *74L. Sweat and that “neither of said defendants reside in Marion County.” Under the above statute “the plaintiff may proceed against the defendant served, noting the fact of non-service on the absent defendant.” The sheriff’s return is a sufficient notation of non-service. See Bacon v. Green, 36 Fla. 325, text 353, 18 South. Rep. 870. See also Sec. 1404, Gen. Stats. 1906; Nathan v. Thomas, 63 Fla. 235, 58 South. Rep. 247; Thomas v. Nathan, 65 Fla. 386, 62 South. Rep. 206; Camp v. First Nat. Bank of Ocala, 44 Fla. 497, 33 South. Rep. 241, 103 Am. St. Rep. 173.
Under sections 1371 and 1372 General Statutes of 1906, W. J. Hillman, being in effect admitted to be not liable, was properly dismissed as a joint defendant, and such dismissal was in effect an amendment of the declaration. S. A. Rawls is shown to have died. No material departure is apparent in the pleadings of which Paul may complain, he having joined issue on the replication without testing it by demurrer or otherwise. The issues made by the pleadings were fully submitted to the jury; and their specific finding for the plaintiff and “that Mr. R. H. Paul was a member of the firm of S. A. Rawls and Company” is not clearly wrong on the evidence. No error is assigned on the form of the judgment, and no fatal defect is apparent therein.
A rehearing is denied.
Taylor, C. J., and Shackleford, Cockrell, Whitfield and Ellis, JJ., 'Concur.