¶1T. A. Jackson brought an action of forcible entry and detainer against W. J. Flowers in the Ashley circuit court for the possession of a certain tract of land. He sued out a writ of possession, directed to the sheriff of Ashley county, and commanding him to deliver the possession of tho land to the plaintiff, and to summon the defendant to appear in court on the first day of its August (1895) term and answer the plaintiff in the action. It does not appear that any part of the writ was served. No return, showing service, was made by the sheriff. A judgment by default was, however, rendered against the defendant for the possession of the land, and for forty-seven dollars for rent and damages, and for the costs of'the action. From this judgment, the defendant has appealed.
¶2The court erred in rendering judgment without legal service of the writ upon the defendant. But appellee insists that service was waived, at a term previous to the term at which the judgment was l’endered, by the appellant appearing and consenting that the action be continued. The only evidence in the record of the truth of this statement is an order in the words following: “It is ordered that this cause be and the same is hereby continued by consent.” This contention is sufficiently answered in Higgins v. Beckwith, 102 Mo. 463, as follows: “Nor was any jurisdiction acquired over the defendant by reason of the entry of record, … whereby the court ordered that the ‘cause be continued by agreement/ The appearance of the defendant had never been entered, so far as the record shows, nor that he was present in court, and so it would require a record entry of more affirmative character to show jurisdiction acquired over him. Non constat but that the cause was continued by agreement of the plaintiff, or upon correspondence with the defendant.”
¶3The judgment of the circuit court is, therefore, reversed; but, as the defendant has voluntarily appeared, and prosecuted an appeal, the cause will be remanded, with instructions to the court to proceed as it could if he had been duly and in due time served with process.