By the Court,
WHITMAN, J.:Appellant filed his complaint against respondents in the District Court of the Sixth Judicial District, County of Lander, seeking to recover from them seven thousand dollars as an attorney’s fee. On the sixteenth of August, 1869, summons was issued by the Clerk of the Court, which was forwarded to White Pine County, in the Eighth Judicial District, for service. On the fourth day of September this summons was served on both the respondents. Subsequently, on the eighteenth of September, the same summons was served on respondent Marchand in Lander County. Upon the thirtieth of the same .month, in open Court, the default of Marchand was entered, and upon proofs made, a judgment was recovered against both respondents, with right of execution against the separate property'of Marchand, and the joint property of Marchand and Murphy. At the same term of the Court, motions were made to vacate the judgment against Murphy, and to set aside default, *387and vacate the judgment against Marchand. These were considered together, and the entire relief demanded was granted. This is assigned as error. >
There was no authority for the judgment against Murphy; he had been regularly served with summons, and by its terms, and under the statute, had forty days therefrom to answer, which time had not expired when judgment was taken against him. The Code provides that: “ When the action is against two or more defendants, and the summons is served on one or more, but not on all of them, the plaintiff may proceed as follows: First, if the actions be against the defendants jointly indebted upon a contract, he may proceed against the defendant served, unless the Court otherwise direct; and if he recover judgment, it may be entered against all the defendants thus jointly indebted, so far only as that it may be enforced against the joint property of all, and the separate property of the defendant served; or second, if the action be against defendants severally liable, he may proceed against the defendants served in the same manner as if they were the only defendants (Stats. 1869, 202, Sec. 82) ; but such was not this case. Murphy was served, and no judgment could regularly be entered against him as affecting his property, whether joint or several, until his time for answer had expired, save by his consent. Therefore, the judgment against him was properly vacated.
If the second service upon Marchand was valid, it may well be doubted whether the default should have been set aside, provided any judgment could properly have been rendered against him on such default, before his codefendant, jointly liable, had defended, or refused or neglected to defend; but these are grave questions of practice, unnecessary to be decided under the view taken of such second service. The statute provides, that “ the summon's shall be served by the Sheriff of the county where the defendant is found, or by his deputy, or by any citizen of the United States over twenty-one years of age; and except as hereinafter provided, a copy of the complaint, certified’ by the Clerk, or the plaintiff’s attorney, shall be served with the summons. When the summons shall be served by the Sheriff, or his deputy, it shall be returned with the certificate or affidavit of the officer of its service and of *388the service of the copy of the complaint, to the office of the clerk of the county in which the action is commenced.” (Stats. 1869, 200, Sec. 28.) So that, full service having been made and the demands of the writ satisfied, the conclusive presumption of law is, that such writ is returned to the Clerk’s office of the Court in which the suit is pending. It has no business anywhere else; its office is accomplished, a,nd no person can effectively thereafter use it for its original purpose.
Whether an alias summons could be issued by attorney or .clerk, and served upon a defendant already served, so as to reduce the time of appearance, is another and perhaps entirely different question. That this summons was properly served in the first instance, is evidenced by the return of the Sheriff.
Take section thirty-three, which reads: “ Proof of service of the summons shall be as follows: 1st. If served by the Sheriff, or his deputy, the affidavit or certificate of such Sheriff, or deputy,” etc., in connection with section twenty-eight, previously quoted, and there is no doubt that, so far as this matter of service is concerned, the Sheriff, or deputy serving, is to that extent the officer of the Court where the action is pending, and thus to be recognized. This summons, then, having been properly served, should have been returned. If returned, such fact should have been noted in the register; and the paper itself should have remained upon the files of the Clerk of Lander County; and in either or any event, no defendant could be damaged by official laches.
Therefore, the second service was an absolute nullity; and Mar-chand was not thereby called upon to answer, otherwise than under the original service. Wherefore, the default entered against him was irregular; and was properly, with the judgment thereon entered, set aside.
The order of the District Court is affirmed.