¶1— The legal effect of the omission of the sheriff to make a return of the process as to Grayham, has been heretofore held to be equivalent to an affirmation by the sheriff, that he could not be found. This being the case, it is clear that he was not subject to a judgment, and the only questions are, whether the record shows-an appearance by him, and whether the judgment has been rendered against him. In Puckett v. Pope, 3 Ala. Rep. 552, it was held, that where there are two defendants, only one of whom was served with process, and pleads, and the judgment entry recites that the parties came by their attorneys, and thereupon came a jury, &c., it will be intended that they only came, who had made up an issue to be tried. [See also, Catlin, Peeples & Co. v. Gilder’s Ex’rs. 3 Ala. Rep. 536. Where a writ is sued out against two joint makers of a promissory note, and served on one only, but the declaration is against both, it is not necessary to enter a discontinuance on the record, as to the party not served with process ,• if no judgment is rendered against him, this is in legal effect a discontinuance, and the judgment against the defendant before the Court-will be regular. [Oliver v. Hutto, 5 Ala. Rep. 211.]
¶2The cases cited from 3d Ala. Reports, show, that as the defendant who was served with process, alone appeared and pleaded, it cannot be inferred from the recital in the judgment, that the other defendant who was no party to the issue, submitted himself to the action of the Court. The case in the fifth volume establishes, that although a party not served with the writ is declared against, yet if no judgment is taken against him, his co-defendant cannot, on error, insist that a discontinuance was entered — the failure to take judgment operating a discontinuance.
¶3The judgment rendered in the present case, must be regarded as a consequence of the verdict, and intended to conform to it, and not affecting other persons than those who were parties to the issue tried. The use of the word “ defendants” instead of the singular, defendant, according to repeated decisions, will be treated as a mere clerical mistake, upon the principle, that whenever it is apparent that the plural was unintentionally substituted for the singular, or vice versa, it shall not affect the regularity of the judgment.
¶4*721The judgment upon the verdict is the only one that has been rendered, and from what has been said, it results that the assignment of error is not supported by the record. If an execution should be issued against Grayham, it may be superseded on petition, or quashed on motion.
¶5The judgment is affirmed.