¶1.The opinion of the court was delivered by
¶2Detheridge sued Earle on a promissory note,: áiíd 'being :a non-resident, Cureton became his surety for costs. " A* judgment was entered up against both Detheridge and Cureton,-hié ¿Urety, and execution issued thereunder. TJnder this execution the lands in suit belonging to Cureton were sold and purchased by'Eafle, who took a sheriff’s deed therefor. Earle, as the purchaser of the land, now sues for its possession, and exhibits the j udgment against Detheridge and Cureton and the execution and sheriff’s deed thereunder. Thejudgment record shows that the only position that Cureton occupied in relation to the action in which such judgment was recovered, was that of surety for costs of the plaintiff. It does not appear that Cureton has been summoned to answer or show cause why he should not be charged on his obligation as surety, and has had an opportunity to defend the.same. On the contrary it excludes the idea of any regular- proceeding to charge Cureton. Under such circumstances1 thejudgment is wholly void, and cannot afford any ground for the title which Earle makes to the land in suit.
¶3The obligation of Cureton in this case did not waive the right of defence or furnish any authority for taking a judgment against him without a regular proceeding to charge him thereunder. The judgment of the court reversing the judgment below, has already been entered.