By the Court,
Dickinson, J.The defendant, in whose favor there is a discontinuance of the action, is certainly entitled to a judgment for his costs, if any have, been expended by him. In the case before us, it appears there was no service upon James. He was never in court, and consequently l\as been put to no expense in defending the suit. Such being the case, he could have no judgment.
The place at which the Court was to be held, is, in our opinion, set forth with sufficient certainty. The defendants were required to appear “ before the Judge of our Circuit Court of Pulaski county, at the Court-house in the county aforesaid,” meaning, of course, the Courthouse in the county last named.
Although, as a general rule, it would, perhaps, be well to aver the non-residence of the defendant against whom a' writ goes to another county, yet this Court has declared that the omission to do so, is no cause of error.
The counsel refers to the case of Womsley vs. Cummins, in support of his motion for re-consideration. We have looked into that case; and, as regards the decision upon the writ, as the question was there presented, discover no valid objection to it. The plaintiff himself admitted the error, and it was upon his own motion that the writ was quashed and set aside. So, the general principle, as applicable to discontinuance, is correctly stated. Its application, however, to that particular case, may well be doubted, after Womsley had appeared and craved oyer, and filed his plea to the merits, thereby waiving the effect of the discontinuance, as to him; and so the Court has since, as we think, correctly ruled.
Judgment affirmed.