delivered the opinion of the Court:
Several errors have been assigned, which are considered by the Court as unimportant, and not necessary to be noLiced, as the case must be decided upon the assignment which questions the correctness of the judgment, on the ground that it appears by the record, that Latham was not served with process to appear, and never did enter his appearance to the action.
That the summons was not served on Latham, is manifest from the return of the Constable thereon endorsed, consequently he was under no legal obligation to appear; and, according to the principle stated and acted upon by this Court, in the case of Smith vs. Stinnett, which is believed to be right in itself, and fully sustained by the authorities there cited, the entries, as made of record in this case, must be regarded as only applying to, and embracing such of the parties, as by the service of process on them were legally bound to appear, but cannot be considered as constituting or establishing an appearance on the part of those not served with process to appear, and who were under no legal obligation to enter their appearance to the action. Therefore, if this principle and rule of construction be correct, Latham does not appear by the record to have been a party to the case legally before the Court, and against whom a valid judgment could have been given. Notwithstanding which, judgment was given against him and Woolford jointly, which is, in the opinion of this court, wholly unauthorized by law, and therefore ought to be, and is hereby, reversed, with costs, and the cause remanded to the Circuit Court of Pulaski county, from whence it came, for further proceedings to be there had according to law, and not inconsistent with this opinion. But, inasmuch as Latham has, according to the rule uniformly acted upon by this Court, made himself a party defendant to the action, by joining in the writ of error in this case, sued out and prosecuted in this Court, the case, upon its return to the Circuit Court, must be regarded and proceeded in, as though he had been duly and legally served with the original summons issued against him by the Justice of the Peace.