Ellison v. Cain

2 Ind. 236

• Court: Indiana Supreme Court
• Decided: May 15, 1850
• Status: Published

Opinion

THIS was an action of assumpsit brought by Cain against Thomas and William Ellison. The declaration, which contains two counts, was filed in April, 1848. The first count is on a promissory note, and the second is for money had and received. At the April term, 1848, the defendants appeared and pleaded non-assumpsit. At the September term following, the plaintiff suggested the sheriff’s return to the writ of “ not found,” as to William Ellison, one of the defendants. The defendants’ attorney then withdrew his appearance; and a default was against Thomas Ellison. There was afterwards an assessment of damages, and then final judgment rendered against Thomas Ellison for the amount assessed.

A. Ellison, for the plaintiff. J. B. Hoiue, for the defendant.

This judgment must be reversed.

The plaintiff in error contends that, as the appearance was withdrawn, the plea was abandoned. If that be so, then the default is erroneous, because it does not appear that Thomas Ellison had had notice of the suit. Dixon v. Boyer, 7 Blackf. 547.

If the plea be considered as still in, notwithstanding the withdrawal of the attorney’s appearance, then the default is erroneous, because it was entered over an issue to the country. Maddox v. Pulliam, 5 Blackf. 205.

The judgment is reversed with costs. Cause remanded for further proceedings. Costs here.