The opinion of the court was delivered by
Valentine, J.:This action was commenced in the court below by William Billson and W. Jones, as Billson & Jones, against James C. Hodgson and others to recover for materials furnished and work done on a certain house, and to foreclose a mechanics’ lien on the house for the value of said work and materials. A personal judgment was rendered against said Hodgson and in favor of the plaintiffs below for the value of said work and material, but the mechanics’ lien was dismissed. Hodgson brought the case to this court on petition in error, but he has obtained service of summons on Billson only; and there has been no appearance in this court for either Billson or J ones. From an inspection of the record we are inclined to think that the judgment below should be reversed for errors which we do not think it is necessary to mention, but we cannot reverse the judgment as against Jones, for he has not been brought into court. (Ferguson v. Smith, 10 Kas., 394.) He is a necessary party to the determination of this petition in error, and must have an opportunity to be heard before we can decide against him.
The plaintiff in error should have continued the case until he could have obtained service on J ones. But as he has not done so, and as he has submitted the case to us for a decision upon its merits, the only proper course left for us is to dismiss it for the want of one of the necessary parties. The petition in error is therefore dismissed. *
All the Justices concurring.[* Since the filing of this opinion plaintiff in error has commenced his action anew in this court, by filing a new petition in error, and obtaining proper service on both defendants; and the action is now pending on its merits.—Reporter.]