
    Moses Norman, Respondent, v. Benjamin Hooker, Appellant.
    
      Practice — Default.—It is erroneous to enter a judgment by default while there is an answer on file remaining undisposed of.
    
      Appeal from Laclede Circuit Court.
    
    
      T. A. Sherwood, for appellant.
   Bates, Judge,

delivered the opinion of the court.

Norman sued Hooker and Harrison upon a promissory note. They answered; two days afterward judgment by default was given against them. At the next term Hooker moved the court to set aside the judgment, because it was irregularly entered whilst the answer was undisposed of. At this term there was a new judge on the bench who had been of counsel in the case, and the bill of exceptions shows that the motion was overruled on the ground that the judge had been of counsel in the case. An entry made by the clerk on the record, shows that for the same reason the court refused to entertain the motion. Either disposition of the motion was wrong; the judgment should have been set aside, and if the judge upon the bench was, by reason of his former relation to the case incompetent to sit in it, a change of venue should have been granted. No opinion is given, of course, as to the sufficiency of the answer which had been filed by the defendants.

The judgment of the Circuit Court in refusing the motion to set aside the original judgment is reversed, and the cause remanded to the Circuit Court, where the judgment by default will be set aside and the cause be proceeded with.

Judges Bay and Dryden concur.  