¶1This is an action against a Sheriff for refusing to levy upon and sell property under execution. The defendant refused to execute the writ on the ground that the judgment upon which it was issued was void. At the trial the Court held that the judgment was void, and that the defendant was therefore justified in refusing to execute the writ.
¶2The judgment roll in the action in which the writ was issued, and which was offered in evidence at the trial, exhibits the following state of facts: The title of the action, as given at the head of the complaint, was “Martin Welsh v. M. Walsh et al., composing the Bed Star Mining, Company.” In the body of the complaint it is stated that “ said Bed Star Company ”—omitting the word “ mining ”—“ is a mining association, composed of a great number of persons who are so numerous and so much scattered over the country that plaintiff cannot serve them with process without much delay and great expense, and he therefore sues them by this company name.” Thereafter the complaint proceeds and sets out a cause of action which is for the recovery of money, and concludes with a prayer for judgment for the amount alleged to be due and owing against the “Bed Star Mining Company.” In his return to the summons the Sheriff certifies that he served the same by delivering a copy thereof to M. Walsh personally, one of the members of the “Bed Star Mining Company,” defendant,, etc. The time for answering having expired without any appearance, the Clerk entered the default, and immediately thereafter entered a judgment against the “ Bed Star Mining Company,” without naming Walsh, for the amount sued for to be enforced against the joint property, of the members of the company.
¶3The Court below held that the suit was against Walsh alone, and that the Clerk had therefore no authority to enter a judgment against the “ Bed Star Mining Company.” The ground of the decision, as stated_ by the Judge in his conclusions of law, are that the complaint fails to show a case in which suit *205may be brought against a company or association by the company style or name, as provided in section six hundred and fifty-six of the Practice Act; which is to the effect that where two or more persons are associated in any business, and transact such business under a common name, whether it comprises the names of such persons or not, they may be sued by such common name, the summons in such case being served on one or more of the associates, but the judgment shall bind only the joint property of the associates.
¶4It is possible that where a party seeks the advantage secured to him by the foregoing section, he ought to show, substantially, in his complaint that the conditions therein stated exist in his case. Where there is an entire absence of any statement showing the existence of such conditions, it may be that a judgment by default, entered by the Clerk without an order of the Court, would be void under the rule in Stearns v. Aguirre, 7 Cal. 443, and Kelly v. Van Austin, 17 Cal. 564, cited by respondent, but it is unnecessary to determine that question in this case. It is clear from the complaint in this case, although it might have been more fully stated and with greater precision and certainty, that the defendants are a mining association, under the name of the Red Star Mining Company ; that there are two or more than two of them, and that the plaintiff intends to sue them by their company name and obtain a judgment against them by that name and no other. It is clearly stated that they are numerous; that they compose a mining company and that their name is the Red Star Mining Company. We think this a substantial statement that the defendants are two or more in number, that they are engaged in the mining business and that said business is carried on under a common name, and that that name is the Red Star Mining Company. There is certainly not an entire absence of averment on the subject, and nothing short of that would justify us in holding the judgment absolutely void, even if it could be done in that case, which point we do not decide. Moreover, it may be doubted whether this is anything more than matter in abatement, a question whether the defendants have been sued by *206the proper name, and, to say the least, is analagous to the case of a misnomer, which never renders a judgment void. If the defendant does not choose to appear and plead matter in abatement, such matter is waived and cannot be assigned for error if he has been actually served, and much less is a judgment by default against him, though by the wrong name, void. (Ex parte Kellogg, 6 Vt. 509 ; Guinard v. Heysinger, 15 III. 288 ; Hammond v. The People, 32 III. 446.)
¶5Judgment reversed and new trial ordered.