Powell v. Finch

5 Duer 666

Opinion

Bosworth, J.,

on a subsequent day, held, that the action is not in a condition to be tried. The defendant, who has not appeared, or been served, is not before the court.

A judgment that he execute such a bond and mortgage as the contract calls for cannot, rightfully, be rendered, nor enforced, as against him, if rendered.

A complete determination of the controversy cannot be had, without the presence of the third defendant. Service of a summons upon him, or his appearance in the action is indispensable. (Code, § 122.)

The trial which has been had must be treated as a nullity. The defendant, who has not been, must be served with process. When the action is in a condition, as against all the defendants, to be tried, it must be regularly noticed for trial, and be tried, as if no attempt to try it had been made.