| Ala. | Jan 15, 1837
The defendant in error, caused to be issued a writ of capias ad respondendum, against the plaintiffs, returnable to the Circuit Court of Marengo. The writ was executed on Thomas B. Lucy only, and against him, the defendant declared, reciting in his declaration, that the cause was discontinued as to Alfred D. Lucy.
At a subsequent term, a judgment was rendered against the plaintiffs, as follows:
“At this day came the parties, by their attornies, and the defendants, saying nothing in bar or preclusion of the plaintiff’s action — it is therefore considered by the Court, that the plaintiff recover of the said defendants, &c.”
It is insisted, for the defendant, that this judgment must be held to be against Thomas B. Lucy, alone, as the service was perfected on him, only, — ■
We do not think so: it is not the duty of the clerk to determine against whom a judgment shall be rendered: this is a judicial act. The mere registration of the judgment, and the ascertainment of the amount due, when that is fixed by writing, and no defence made, is the duty of the clerk.
In the case of Gilbert and others vs Lane,* (at January term, 1836,) this Court determined, that where original process, issued against several, and was served on one only, if the plaintiff proceeded to judgment against all, the proceedings were erroneous, and could only be aided by an appearance,which the judgment in that case shewed.
Had the plaintiff below, have declared against both the parties sued, his judgment would not have been reversible; for the judgment shews that both the plaintiff and defendants, came by their attor-nies — and their appearance would have dispensed with the service of the writ. But not having thus declared, there- isno declaration to sustain the judgment against Alfred D. Lucy — the want of which, we have repeatedly decided, a defendant may avail himself of on error..
For this reason alone, the judgment must be reversed, and be here rendered against Thomas B. Lucy.
Porter 237