The opinion
The opinion of the court was delivered by
Rogers, T.
It is impossible to inspect the record, without being satisfied that this is a judgment against John Brown, alone. The suit was brought against the firm, but the writ was served on one only. “Served,” says the deputy sheriff, on the back of his writ, “the within on one of the defendants, John Brown.”
It is plain, that Brown alone, had notice of the time the arbitrators were chosen; and this fact is proved by»the oath of George Green, who served the rule of reference. It has not been shewn, who had notice of the time appointed for the meeting of the arbitrators, nor whether more than one person • attended. If cither of the other defendants were present, it might have been proved without difficulty, and this would have removed the objection, that this is an attempt to make them liable on a judgment, without affording them an opportunity to make defence. The arbitrators state, as is usual, that they make 'their award, after hearing the parties, their proofs, and allegations. We must intend that the parties here spoken of, were the plaintiff, and the person, who it appears, had notice of the proceeding. The special proof of service, cannot be controlled by the general appearance entered by Mr. Jlnderson, or the return on the back of the writ. If we had nothing more, the fee @1 indorsed, accompanying the writ, shews, that the service was on but one of the defendants.
As the cause was referred, and award made before the return of the wi;it, there is no sufficient reason for extending the entry of a general appearance, beyond an appearance for John Brown, on whom the writ was served, who had notice of the arbitration, and who alone for aught that appears, attended the arbitration.
Even if there was an appearance for all, after the award, it would not .make this a valid judgment against all the defendants. This presents the case of an execution against parties, against whom no judgment liad been rendered, which is clearly void. It is not merely an erroneous or irregular judgment, which cannot be examined after the expiration of seven years.
Execution against William Brozan, and John Watson, set aside.