¶1— Some difficulty is thrown around this case, from the manner in which the record is presented.
¶2An original writ issued a'gainst Smith, the plaintiff in error, and one Davis, which was served on Davis, against whom a declaration was filed — on which, the suit, as to Smith, (who was not served with process) is discontinued. Judgment was rendered, on verdict, against Davis. Previous to the judgment against Davis, and after the discontinuance against Smith, a writ is issued, reciting the issuance of the previous writ, against both, *130and that it was not served on Smith. After the judgment against Davis, another writ is issued against Smith, which being served on him, and a declaration filed, he appears and moves the court to quash the writ, as founded on a proceeding previously discontinued. This motion was denied, and judgment rendered against him at a subsequent term. All of the proceedings against Davis are irregularly entered in the transcript as a part of the record of this suit: when these are stricken out, there will appear only the writs and proceedings against Smith, and the recitals of a previous writ having been issued against him and Davis, is not such a defect as can be available to him.
¶3As soon as the action was discontinued in the court below, the plaintiff in that court had the right to sue out process against Smith, and the recital of the former writ can not vitiate the subsequent process.
¶4Let the judgment be affirmed.