The judgment upon the writ of sci. fa. as appears by the record, was irregularly entered. On the return of the writ by the sheriff, that the defendants could not. be found, and had no dwelling house within his county, it was necessary to have procured a rule to be entered by direction of the court requiring the Defendants to appear and plead to such sci. fa. within twenty days after *18the publication of such rule; and a certified copy of such rule should have been published for four weeks successively in the state paper, and also in a newspaper published in the county where the sheriff who executed the writ resided, if any such paper was published in said county, and if not, then in the paper nearest his residence in an adjoining county. (2 R. S. 580, sec. 19, 20: Laws of 1838, chap. 212, sec. 1. 2.)
The 21st section of the Revised Statutes provides that if the Defendant in such sci. fa. shall not appear and plead within the time limited in the rule, the Plaintiff shall be entitled upon filing an affidavit of the due publication of such rule to enter the default of the Defendant, and that judgment shall be entered upon such default in like manner, as if the writ had been returned served. The 23rd sec. provides that no proceedings shall be had upon any writ.of sci. fa. unless the same shall have been served, or notice thereof published as therein before is provided.
. The record should contain enough of the proceedings to show that the court had jurisdiction of the persons of the Defendants before judgment was entered against them on the sci. fa. It should have contained a suggestion that on the return and filing of the writ with the return of the sheriff thereon, it appeared that the Defendants could not be found in his county, and had no dwelling house in the same county, and that the court on motion of the Plaintiff’s counsel ordered a rule to be entered requiring the defendants to appear and plead to such sci. fa. within twenty days after the last publication of such rule; and a further suggestion that a copy of such rule certified by the clerk of the said court had been published for four weeks successively in the state paper, and also in a newspaper published in the county where the said sheriff resided; or if no paper was published in the said county, that such should be suggested, and that it was published in some other paper named, nearest the residence of said sheriff, in an adjoining county; and that on filing an affidavit of the due publication of such rule, twenty days after the last publication thereof, having elapsed, and the Defendants not appearing and pleading to such writ, their default was duly entered. The record in this case contains a suggestion that such rule was entered by the direction of this court, and that a further rule was ordered and entered that said first rule should he published for four weelcs successively in the state paper of said state. It does not, however, appear by any suggestion in the record, that the rule or a copy thereof certified by the clerk was published at all in any paper; but the record proceeds to show that afterwards on the eighth day of July, the Defendant not appearing, judgment was *19given, without any suggestion that any publication of the rule had been had, or that any affidavit of the due publication of such rule had been filed.
It is claimed that the judgment in the original suit against the Defendants with S. W. Brown was irregular; Shepard, Babbitt, Hall and Brown were joint and several makers of the promissory note upon which the action was brought. The declaration was filed against all, and served only on the three former, against whom, (dropping Brown,) only was the judgment entered. This was not only irregular, but erroneous. The judgment should have been entered against all under the provisions of the statute, although the process had not been served on all. (2 R. S. 377, sec. 1 ; Nelson v. Bostwick, 5 Hill, 37 ; Platner v. Johnson, 3 Hill, 476 ; Miller v. McGagg, 4 Hill, 35.)
From the lapse of time since the judgment was recovered, the Defendant’s remedy by writ of error is barred, (2 R. S. 594, sec. 21,) and relief by motion, if the defect complained of is merely a technical irregularity, and not a matter of substance, (2 R. S. 359, sec. 2; Dedrick v. Rusley, 9 Wendell, 108,) cannot now be granted, more than one year having elapsed since the judgment, even if the defendant had not been guilty of laches in making this motion. They knew of the existence of the judgment as early as the 21st of March last. -They lay by until the last April and June terms of this court had passed without moving and without any valid excuse, and the excuse given, is met and denied fully by the opposing affidavits. The Defendants swear to merits, but they disclose in what their defence rests, from which it cannot but be seen that it would not by any possibility avail them. Brown is dead; and if the default, subsequent proceedings and judgment were set aside, the Plaintiffs would be entitled to enter a suggestion on the record of the death of Brown, and proceed in the action against the Defendants, Shepard, Babbitt and Hall, as survivors, (2 R. S. 386, sec. 1,) and they having no valid defence, the Plaintiffs would be entitled to a new judgment in form and effect the same as the present. Upon the whole I see no sufficient reason to set aside that judgment. The default in the scifa. suit and subsequent proceedings must be set aside, but without costs.