
    Pearce v. Tally.
    Where a defendant simply waives the issue of process, it. is error to take judgment by default, unless such waiver has been made five days before the first day of the term.
    Error from Harrison. The petition in this ease was filed on the 9th December, 1¡>.)(), and it. prayed citation to the defendant to answer at the next, term of the District Court. The session of the next term commenced on the IGtii December, but no citation was issued until the 31st December, [COG] ISJO. On the same day the defendant acknowledged the issue and service of the ula-tiou, and waived copy of the petition. At a succeeding day of the same term, viz, on the 8th of January, 18J1, judgment as on default was entered against defendant. In this the defendant alleged that there was error; that he, was not compelled by law to appear and picad his defense before the succeeding term of the court.
    
      IF. 11. Jiristozo, for plaintiff in error.
   Hemphill, Cii. J.

The statute dec-lares that to compel the defendant to plead at the return term of the court, the citation must have been served at. least, live days before the first day of the said term. Had the citation been served regularly on the defendant he could notlmxe been required to ap-irear at the red urn term, unless served live days antecedent to its first day. The acceptance of service only waives the necessity of issue and service, hut does not waive any other right to which the defendant maybe entitled. He is not thereby placed in a worse situation than if service had been made in conformity with law. The acceptance in tills case not being made live da\s. before the commencement of the term, no judgment by default could have been entered at that term against the defendant.

By the. terms of the acceptance, or perhaps from other circumstances, it may appear that the defendant had waived other rights than that of service merely, but such is not the case under consideration.

Reversed and remanded.  