ON APPLICATION POR REHEARING.
The plaintiffs charge, error in this :
1. That the Court erred in deciding that Beer has never been cited in this suit:
2. That the court erred in deciding that Ferdinand Beer is a necessary party to this suit.
3. That the Court erred in remanding the cause as to Wolff, even if it were correct in doing so as to the other defendants.
On the other hand, Wolff claims that the case should have been decided finally aud in his favor.
I.
Since the decision of the case, the plaintiffs have filed in this Court a document purporting to be a copy of the citation issued to Beer and of the return of the service on Mm.
The fact of the production of such document in this Court, and at that stage, proves that the transcript contained neither the citation nor the return when the case was determined and that this Court was right when it said that Beer did not appear to have been cited and served.
. But it is claimed that, if the transcript does not contain the citation and the return, it is because the omission of the same therefrom is justified by the sixth clause of the first rule of this Court.
*175That rule dispenses with the copying into the transcript of citations and returns, only where issue has been joined by the appearance of the party asked to be cited. It does not apply to cases in which such party makes default.
The statements in the briefs for a rehearing that the motion for a default was made and granted is not verified by the record.
Where a motion is made for a default, it should be noted on the minutes of the Court. It is true that there is found in the note of evidence mention of a verbal application for a default, but this is irregular and void. The law authorizes the plaintiff, if the defendant do not appear, after the delay allowed, to take a judgment by default, which can be obtained by moving for it in court. It suffices that such judgment appear by a statement on the records of the court that the defendant has failed to appear.
The law retpiires that all judgments, whether interlocutory, final or definitive, shall be correctly entered on the records, that is: the minutes of theu court. The same rule must be observed in relation to all orders or mandates given by the court, as well .as to all motions made by the parties to the suit. C. P. 310, 311, 533, 534, 538, 544; 6 R. 9; 8 N. S. 339; 15 A. 164.
The ease cannot be considered at issue in the absence of a judgment by default regularly entered, or of an appearance by the defendant. The joining of issue is in fact the foundation of the suit, as citation is that of the action. C. P. 360, 359.
TÍ.
The plaintiffs thought that Beer had an interest in this suit, for they averred against him, prayed that he be cited and condemned to pay them the amount of their claim.
Beer is alleged by the plaintiffs to have acquired the ownership of the cotton. It is on that cotton that plaintiffs claim a lien and privilege. His property is in control of the court and at stake. He may have defenses. He may allege and show that Wolff has paid plaintiffs, that he paid Wolff, or that the sale to him is a nullity; or that he owes Meyer, Weis & Co. nothing; that he is the owner of the cotton which is free from all claim from plaintiffs or Meyer, Weis & Co.; or he may set up some other defense which it is difficult to conjecture or anticipate. No judgment can be rendered in favor of plaintiffs subjecting the cotton sequestered in the hands of Meyer, Weis & Co. to the lien claimed, without affecting some of Beer’s rights to it. 12 Wheat, 198; Daniel Ch. Pr. vol. 1, p. 246; 34 A. 421; 32 A. 548; 20 A. 383.
*176The plaintiffs allege that the cotton was sold to Beer, by whose order it was transferred to Meyer, Weis '& Co., and the latter ask judgment against him for the amount of their advances. The fact that Beer was not cited on the counter demand of Meyer, Weis & Co: is no reason why he should not be represented and why the latter should have no recourse against him, under the circumstances of this case. The plaintiffs thought, that they could not trace their cotton to Meyer, Weis & Co. unless through Beer, and could not ask judgment affecting that cotton without bringing him formally in, and they have accordingly formally done so.
TIL
The plaintiffs claim that they should not be denied a personal judgment against Wolff, with recognition of their lien and privilege on the cotton.
But it is impossible to admit that privilege in the absence of Beer, whose cotton it may be.
Had tlie plaintiffs waived that lien, there might have been no objection in rendering a judgment on the claim against Wolff.
This Court cannot render the personal judgment and next inquire into and pass upon the question of privilege. Tt will not try and decide a case piecemeal against the same defendant.
IV.
Wolff insists that judgment should have been rendered in his favor. It is difficult to perceive how such conclusion could have been reached.
The difficulty in the way of a definitive judgment between him and the plaintiffs consists in the impossibility of rendering a judgment which would recognize the lien claimed without affecting the rights of Beer, who was made and remains a parly; who is here represented by plaintiffs as having been cited and served and who has certainly an interest in resisting the 'claims of both plaintiffs and Meyer, Weis & Co.
If it be true that Beer was cited and served, it will be incumbent on plaintiffs to obtain a judgment in lower court, On proper showing, before proceeding with the case on the remanding thereof.
Had the citation and the return, the motion for a default and a judgment thereon, been regularly before us, the case could have been easily disposed of. In the absence of such essential proceedings, our previous decree cannot be altered.
Rehearing refused.