#### Samuel L. White, Plaintiff in Error, v. Thomas Thompson, Defendant in Error.

ERROR TO GALLATIN.

It is error in the court to render a judgment by default when a plea is filed and unanswered.

Opinion of the Court by

Chief Justice Thomas Reynolds, and Associate Justice John Reynolds.

This was an action of trespass commenced by the defendant here in the court below. To which action White pleaded the pendency of a former suit for the same cause of action, in abatement. Notwithstanding which plea, and without replying thereto, the plaintiff proceeded to take judgment by default, and a jury were impanneled who assessed the damages.

*73 Lockwood and Blackwell, for plaintiff.

Starr, for defendant.

The error assigned, and the one relied upon, questions the legality of these proceedings.

The court certainly erred in rendering judgment by default after the plea was filed, and while the same remained upon record unanswered. For this error the judgment must be reversed, and the cause remanded for new proceedings to be had not inconsistent with this opinion. (1)

Judgment reversed.

(1)

Affirmed in Semple v. Locke, post. Lyon v. Barney, 1 Scam., 387. Manlove v. Bruner, id., 390. Covell et al. v. Marks, id., 391. McKinney v. May, id., 534. Chapman v. Wright, 20 Ill., 120. Moore v. Little, 11 Ill., 549.

When the record shows that a plea was filed and a judgment by default rendered on the same day, the judgment will he reversed. The court will not presume that the plea was filed after the judgment was entered. Lyon v. Barney, supra.