A judgment having been recovered in favor of Dougery and Freeman, against the present plaintiff, Clark, this writ of Audita Querela, to sét aside the execution upon that judgment, should clearly have been served upon both of said creditors ; and for want of such service-on both, it ought to abate or be dismissed, if a plea, or motion to that effect had been interposed in due time. The Statute has pointed out a way in which service can be made in all possible cases, to bring again into Court parties, who have once recovered judgments, for the purpose of correcting those judgments, if erroneous. But, if the action is entered.in Court without service, notice of the suit, merely, will not make other persons, than those on whom service has been made, parties to the suit. The plaintiff proceeded just as if a service had been made on Dougery, and gave him notice of the suit. He might safely haye disregarded that notice. But he, fearful, perhaps, *124of the consequence of standing aloof, appeared and' filed & written motion to be dismissed from the suit. His motion, prevailed. Had he appeared for the purpose of any other defence in the suit, than to move his dismissal, or to take advantage of the want of service in some way, it would-have made him a regular party to the suit. But his appearance to move the dismissal did not bind him as a party.
Again, if Freeman would abate or dismiss the suit, it was incumbent on him to file his plea or motion in due season; and not plead to the merits, and put the plaintiff to the expense of a trial upon the merits, and afterwards, move to dismiss the suit. By the judgment, rendered in the County Court, the execution is set aside, leaving the original judgment in full force, and the plaintiff recovered one cent damages and his cost ■, and that judgment is aU firmed.