Reid v. Gregory

78 Miss. 247

Opinion

W hitfield, C. J.,

delivered the opinion of the court.

There is no allegation in the petition that the lien of appellee was superior to the lien of appellant. .The prayer cannot be looked to, to sustain-a judgment by default, on the allegations of the petition. Such petition, not its prayer, is the basis of the claim, and a judgment by default must be confined to establishing the facts alleged in the petition. The judgment by default here-is not within any issue made by the pleadings, and is erroneous for that reason. Green v. Chandler, 54 Cal. 626, and Keller v. Association, 71 Mo. App., 465, cited by counsel for appellant, directly sustain this proposition, as do also Delahay v. Goldie, 17 Kan., 264; Short v. Nooner, 16 Kan., 227; and Dano v. Railroad Co., 27 Ark., 569.

Reversed and remanded.