#### James Semple, Appellant, v. Thomas S. Locke, Appellee.

APPEAL FROM ST. CLAIR.

It is erroneous to take a judgment by default, when there are pleas filed by defendant, in compliance with a rule against "him to plead; in such case, the plaintiff has no right to have the defendant called. (1)

(1)

See note to White v. Thompson, ante, p. 72.

Lockwood, J.,

delivered the opinion of the Court. This was an action of debt on a record from a foreign state, brought in the St. Clair circuit court, by Locke against Semple and another. Semple was alone served with process. On the first day of the term to which the process was returnable, the plaintiff obtained a rule that defendant should plead on the next day ; and thereupon the defendant filed his pleas of nul tiel record, and payment. The record then states, that the defendant being called, came not, but made default, and upon which the court gave judgment for the debt. Prom this judgment, the defendant has appealed to this court, and has assigned for error the entry of a judgment by default, without noticing the pleas put in.

This was clearly erroneous, according to the case of White v. Thompson, decided by this court in Nov. term, 1823, ante, p. 72. When the defendant filed his pleas, he had complied with the rule obtained against him, and the plaintiff had no right to have the defendant called. There was no act in *390court for the defendant to perform, until the plaintiff had demurred or replied. It was, therefore, error to enter a judgment by default in a case so situated.

Prickett and Semple, for appellant.

Cowles, for appellee.

The judgment must be reversed with costs, and the cause remanded to the St. Clair circuit court for further proceedings not inconsistent with this opinion.

Judgment reversed.