There is no ground upon which the judgment against the appellant can be sustained. The summons was not served upon him personally. He did not appear nor authorize any one to appear for him. Having no actual notice of the suit, he would be entitled to a new trial if there was no error in the proceedings. But it is sufficient for the disposition of the appeal to say that there was- no evidence whatever before the justice that the defendant, Pridham, was liable on the note upon which the action is brought.
By subdivision 8 of section 64 of the Code, it is in terms provided that in case the defendant does not appear and answer, the plaintiff cannot recover without proving his case; and, on the other hand, it is hardly necessary to say that where a de*156fendant does appear and deny all the plaintiff’s allegations, the plaintiff cannot recover without proving his case.
On this trial all that the plaintiffs proved against the appellant was the making of the note hy the other 'defendant and the endorsement thereof by the appellant. No attempt was made to show that the liability of the appellant, as endorser, had been fixed in any manner; no proof was given of presentment, demand, refusal, or notice to the appellant, nor of any waiver of demand and notice; so that upon the proofs, whether the appellant was bound or not bound by the appearance of the attorney, who was by the justice understood to appear for both defendants, the proof was wholly insufficient, and the appellant should have had judgment of dismissal.
The judgment as to the appellant must be reversed.