Field, C. J. and Cope, J. concurring.

This is an action of ejectment, in which the summons was served on the defendant Quigley, but not on the defendant Rigney—Quigley having suffered a default, judgment was entered against both defendants. Rigney then moved the Court to set aside the judgment, which motion was granted. The plaintiff appeals, and insists that Rigney could only ask to have the judgment set aside as to him. Although it may be that Rigney might have the judgment set aside as to him, yet we think he may have the only judgment in the case set aside if it has been taken against him without authority. There is no judgment against him alone; it is one judgment against the two defendants for the recovery of the premises and for damages, and to set aside the judgment as to him would in effect be setting aside the whole of that judgment and entering a new judgment against Quigley alone. As it now stands, the plaintiff has only to enter a new judgment against the defendant who has made default. Whichever the form the result is the same.

The parties seem to consider that the leave given Rigney to answer the complaint authorizes him to defend for both defendants. This is not so. The default of Quigley has not been set aside, and if Rigney wishes to defend for Quigley as landlord, he must make an application for such leave. We do not intend to signify any opinion as to his rights in this respect, but only to remove the erroneous impression which appears to have occasioned this appeal.

Judgment affirmed.

Field, C. J. and Cope, J. concurring.

A rehearing is asked in this case on the supposition that the Court overlooked the fact that the term at which the judgment was entered had elapsed before the motion to set it aside was made, and also the fact that the entry of the judgment against both of the defendants was by a mistake of the Clerk of the District Court. *273Although not specially explained in the opinion, they were not overlooked. Rigney not having been served with summons was entitled, under the sixty-eighth section of the Practice Act, to come in and be allowed to answer to the merits at any time within six months. It is not said in that section that the judgment will be set aside, yet it is a matter of course that the judgment may be set aside in order to let in a defense to the merits, unless the judgment is specially ordered to stand. In the case of Bell v. Thompson (19 Cal. 706) we intimated an opinion that this portion of section sixty-eight was probably intended for the benefit of those against whom a judgment was taken regularly without. personal service, as upon publication of summons, and in such case it would be proper to allow a party to come in and defend, allowing the judgment in the meantime to stand. But it has frequently been referred to as applying to cases of judgments entered erroneously without any service of summons or appearance of the defendant, and such cases, undoubtedly, are within its letter. We do not think it desirable now-to refuse to apply this section to any case coming within its terms, by which application some relief may be obtained from the embarrassments arising from the decisions by which the District Courts are prevented from granting appropriate relief because the term at which the judgment was rendered has passed.

For the reason given in our former opinion, we think there was no error in setting aside the whole judgment, nor do we think there was error in refusing to allow the amendment asked by the plaintiff at the time the motion to set aside was made. The accident of entering the judgment against both defendants happened to the prejudice, as it has turned out, of the plaintiff, but this not being corrected before the motion to set aside was made, we think, at least, it was a matter of discretion with the Court to allow the amendment or not.

Rehearing denied.