Malone v. Stud

1 Minor 360

Opinion

THE Chief Justice

delivered the opinion of the Court.

, The principal matter supposed to be relied on as Error in this case is, that final judgment by default was rendered against the defendant in the action without disposing of the issue tendered. It was an action of assumpsit on a note. In the Record, immediately after the declaration, is a plea of non assumpsit, very formally set out; then follows an entry of a claim in vacation of judgment by default for want of a plea. At the succeeding term judgment was rendered by default without noticing the plea. The plea has no date, and from the order in which it stands on the Record, we are bound to presume that it was filed at the same term with the declaration. If so, the claim of a judgment in vacation was void ; so long as the plea remained, it presented a bar to a judgment, and it should have been disposed of in some way before judgment was rendered. The judgment must be reversed, and the cause remanded.