Brown v. Hollenbeck

Opinion by GheeNE, J. In tbe court below judgment was rendered against Brown by default. But it appears that on the day previous, and within the time required by rules of court, a plea had been filed. The practice is too well settled to admit of doubt, that judgment by default 'cannot-be entered if a plea in bar is on file in the case. Davis v. Brady Morris 101; Elliott v. Leak 4 Miss. 540; Conell v. Marks 1 Scam. 391; Manlow v. Beuner ib. Harris v. Muskingum Man. Co. 4 Blackf. 267; Maddox v. Pulliam 5 Blackf. 205. The decisions are uniformly to the effect, that after a plea is filed in a case, the issue should be tried by a jury, even if the defendant does not answer on being called. As counsel, in order to delay the collection of a debt, by securing a reversal of the judgment, may file their plea in a silent manner without notice to the opposing counsel or the court, and then withdraw or otherwise intimate that they have no defense; the district judges should invariably inquire whether there is a plea on file, before suffering a judgment by default to be entered. In this ease the plaintiff below appears by the record to have had a just claim against the defendant, but still the judgment must be reversed, rather than depart from a salutary and well settled rule of practice. Judgment reversed.