#### Jonathan D. Manlove and Moses Manlove, appellants v. John Gallipot, ex dem. John Bruner, appellee.

Appeal from Schuyler.

After a plea of not guilty has been filed, putting a cause at issue, the Court can- . not on calling of the defendants, render a judgment by default; a jury should be empanelled, and a trial had, in the same manner as if the defendants had answered when called.

*391M. McConnell, for the appellee.

Lockwood, Justice,

delivered the opinion of the Court:

This was an action of ejectment brought in the Schuyler Circuit Court. The defendants filed their plea of not guilty, on which the plaintiff joined issue. Subsequently to the joining issue on the plea of not guilty, the plaintiff had the defendants called, and upon their not appearing, had their default entered, and judgment that the plaintiff recover his term and costs of suit. This was clearly erroneous. After issue is joined, the plaintiff to obtain judgment, must proceed and try his cause by a jury, in the same manner as if the defendants had answered to their names when called.

The judgment of the Circuit Court is reversed with costs, and the cause remanded with directions to the Court below to set aside the judgment by default.

Judgment reversed.

Note. See the case of Lyon v. Barney, Ante 387; and the case of Covell v. Marks, Post.