¶1The opinion of the court was delivered by
¶2This was a petition for partition. An attempt was made to serve the defendants (plaintiffs in error,) by publication. The first publication was made on the 17th of February, 1870, notifying the defendants to answer on or before the 31st of March. On the 29th of March, two days before the answer-day, and before the service was complete, judgment was rendered. On the 20th of June thereafter Parker, on due notice given, moved the court to set aside the judgment. This motion was overruled and excepted to. This motion should have been granted. The judgment was rendered before the cause stood for trial, and before the plaintiff in error, Parker, was in default. Code, § 74. The motion was made in time, (§ 669,) on the ground indicated, and was broad enough to include the cause on which we have decided the case.
¶3This decision disposes of the case. Some of the other alleged errors in the publication are not now in controversy as to the parties now before this court, as the motion made on the 20th of June was such an appearance as to Parker as to waive any defect in the publication, if such existed. The affidavits of Parker and Elder, and the prepared answer of Parker, although ■in the transcript, are not a part of the record. They could only be made so by a bill of exceptions.
¶4The judgment is reversed with directions to grant the motion to set aside the judgment and permit Parker to answer, and for further proceedings.