#### HATHAWAY *vs.*FULLERTON.

AKPEAL PROM CIRCUIT COURT, MILWAUKEE COUNTY.

Heard April 23.]

[Decided June 4, 1860.

*Judgment*— Parties—Ejectment.

"Where a party had "been joined as a defendant to an action of ejectment, hut before service and appearance, the action was discontinued as to him, and judgment taken against the other defendant, such judgment does not conclude the first party j and he has no right to insist on being made a party to the suit.

This was an action commenced by the plaintiff against the defendant, and one Herbst, to recover certain real estate in Milwaukee county. Herbst was then in actual possession of the land, and Fullerton was a non-resident of the State of Wisconsin. The summons and complaint, which was sworn to and had the usual affidavit attached, were in the usual form, claiming title to the land in suit in fee, and were served on the defendant, Herbst, personally, on February 14th, 1859. February 15th, 1859, an order was made by the court, directing service of the summons to be made on the defendant, Fullerton, by publication. Copies of the summons and complaint were mailed to Fullerton March 2, 1859,but on March 11, 1859, before service of the summons upon Fullerton, that is to say: Before the period of publication of said summons had expired, and before Fullerton had appeared in the case, the action was discontinued as against him by an order of discontinuance in the circuit court, and by written notice of such discontinuance to Fullerton. March 14, 1859, the remaining defendant, Herbst, having failed to appear, such proceedings were had, that a judgment by default was regularly entered in the circuit court in favor of the plaintiff, and appellant, against said defendant, Herbst.

• On March 18, 1859, the respondent, Fullerton, filed his petition to open the judgment and permit him to defend the suit, and obtained an order to show cause why the petition should not be granted. The order was continued until November 19, 1859. In the mean time execution was issued upon the judgment, and Herbst was turned out, and Hathaway put into *288possession of the premises. On the 19th November, the circuit court made the following order:

“And now at this day the court being well and sufficiently advised of and concerning the application of the defendant, Fullerton, to open the judgment, and for leave to come in and defend, &c., it is ordered that said motion be allowed, and that said judgment and the order of discontinuance as to the defendant, Fullerton, be and is hereby set aside as irregular, and all subsequent proceedings be set aside, and that defendant, Fullerton, have twenty days to answer.”

From that decision and order this appeal is taken.

*Waldo, Ody fy Van,*for the appellant.

*Ogden, Brown fy Ogden,*for the respondent.

*By the Court,*

Paine, J.

The order appealed from must be reversed. After the plaintiff had discontinued as to Fullerton, the suit stood as though it had originally been commenced against Herbst alone. And in this position it proceeded to judgment and execution, and the premises were delivered to the plaintiff. Now if Fullerton had been concluded, or barred in any way by this judgment, it would have been a proper case for the court to relieve him by opening the judgment and permitting him to come in and defend. But he was not. Any right that he had could be fully protected by a new suit, in which he would be plaintiff. Under these circumstances, we cannot see that he had any right to insist on being made a party to the first suit, after the judgment in it had been fully executed. Even if he had prevailed, it is difficult to see how he could have obtained possession without a new action of ejectment, and we think this was his proper remedy in the first instance.

The order appealed from in this case, and also the one in the case of Jane L. Andrews and others, appellants, against the same defendants, depending on the same question, are reversed with costs.