Wyatt v. Headrick

Caton, C. J. A state of case may well have existed which authorized the court below to strike the plea from the files, even after error brought. Instances have occurred where a plea was handed to the clerk, and marked as filed ; and then, instead of being left with the papers, that it might be seen and answered by the other party, it has been withdrawn till after a judgment by default, and then placed among the papers, for the mere purpose of entrapping the plaintiff into an erroneous judgment by default. In such a case, it would be the duty of the Circuit Court to strike the plea from the files, at any time when called upon to do so. Whether this is such a case, we have not examined to see, as that question is not before us. No complaint is now made that the plea was improperly stricken from the files, for upon that decision no error is assigned. It is, therefore, admitted that it was correctly done. That cured the only error which is complained of, which is the rendering a judgment by default, when there was a plea upon the files. It having been properly stricken from the files it ceased to be a part of the record of the cause, and is to be considered as if it had never been there. The judgment must be affirmed. Judgment affirmed,.