#### C. M. Wakefield v. George W. Pennington.

Practice — Failure to pile declaration. — Where the record shows that no declaration was filed in the cause, the judgment is erroneous and must he reversed.

Error to the Circuit Court of Jasper county; the Hon. John H. Halley, Judge, presiding.

Opinion filed October 6, 1881.

Mr. John H. Halley, for plaintiff in error;

cited Practice Act, § 48.

Wall, J.

Defendant in error brought an action of assumpsit against plaintiff in error. The summons was duly served, and at the return term a default was entered and damages assessed at $324.44. The record fails to show that a declaration was ever filed in the case — rather, it shows that there was none —nor has a diminution been suggested or any reason for supposing that there was a declaration and that it has been misplaced. The judgment must therefore be reversed, and the cause remanded.

Eeversed and remanded.