Procedure when defendants not all served.
Where the action is against two or more defendants, and one or more shall have been served, but not all of them, the plaintiff may proceed as follows: (1) If the action be against defendants jointly indebted upon contract, he may proceed against the defendant served, unless the court otherwise direct; (2) if the action be against defendants severally liable, he may, without prejudice to his rights against those not served, proceed against the defendants served in the same manner as if they were the only defendants.
Source:R.S.1867, Code § 84, p. 407; R.S.1913, § 7648; C.S.1922, § 8592; C.S.1929, § 20-527; R.S.1943, § 25-527.
Action being for joint and several liability, it could proceed as to the defendants served, under this section. Bourne v. Baer, 107 Neb. 255, 185 N.W. 408 (1921).
Section is applicable to proceedings to revive joint judgment. Thornhill v. Hargreaves, 76 Neb. 582, 107 N.W. 847 (1906); Clark v. Commercial Nat. Bank of Columbus, 68 Neb. 764, 94 N.W. 958 (1903).
Where principal on injunction bond could not be found in county, it was proper to proceed against surety alone. Gyger v. Courtney, 59 Neb. 555, 81 N.W. 437 (1900).
Obligors on joint bond must be joined; may proceed against those served. Perkins County v. Miller, 55 Neb. 141, 75 N.W. 577 (1898); Young v. Joseph Bros. & Davidson, 5 Neb. Unof. 559, 99 N.W. 522 (1904).