#### James McKinney, appellant v. William L. May, appellee.

Appeal from Morgan.

It is error to take judgment by default, where a demurrer is filed to the declaration or petition.

M. McConnell, for the appellant.

E. D. Baker, for the appellee.

Brown, Justice,

delivered the opinion of the Court:

This was an action of debt brought by Wm. L. May against James McKinney, in the Circuit Court of Morgan county, by petition and summons. Judgment by default was taken against the defendant, for the amount claimed in the petition, although a demurrer to the petition had been filed. To reverse this judgment, an appeal is brought to this Court. This practice is under a particular statute of this State, which authorizes any person holding a bond or note for the direct payment of property or money, to put the same in suit, by filing with the clerk of any Circuit Court having jurisdiction thereof, together with a petition, &c.

*535The fifth section of the act says, “ The petition shall stand in the place of a declaration; the defendant or defendants may appear and plead, and then an issue may be joined, as in actions of debt, on such bond or note.”(1) It seems from the statute regulating this kind of practice, that the petition is substituted for the declaration. It would be error to take judgment by default, when a plea is put in to the declaration. In this case judgment was taken without first disposing of the demurrer, for which decision the judgment of the Circuit Court must be reversed with costs, and the cause remanded for a new trial.

Judgment reversed.

Note. See Manlove et al. v. Bruner, Ante 390, and note.

(1)

R. L. 498; Gale’s Stat. 538.