It was the right of the plaintiff in the Court, below, to dismiss as to the defendant not served, and take judgment against his co-defendants, who were served with process. (Hart. Dig., Art. 704.) Having erroneously taken judgment against the defendant not, served, no reason is perceived why the defendant in error may not confess errors and have the case dismissed as to him, without affecting the judgment as to the other defendants. They cannot have been prejudiced by the rendition of judgment against their co-defendant; and the error is not one of which they can complain. The judgment will be reversed and the cause dismissed, as to the defendant and plaintiff in error, Bird Saffold, at the cost of the defénd- and in error, and affirmed as to the other defendants.
Judgment re-formed.