
    Maddox v. Pulliam.
    
      Thursday, November 21.
    After issues in fact joined in an action of debt, the defendant failed to appear. Held, that the plaintiff could not take judgment by default, but must have the issues tried by a jury. ‘ '
    APPEAL from the Gibson Circuit Court.
    
      E. S. Terry and J. Pitcher, for the appellant.
    
      R. Crawford, for the appellee.
   Blackford, J.

Pulliam sued Maddox in debt upon a writing obligatory. Plea, that the obligation was obtained by fraud and covin. Replication in denial of the plea. There were also several other pleas in bar, upon which issues were joined. When the cause was called for trial, the defendant failed to appear, and the Court, on the plaintiff’s motion, rendered final judgment against the defendant for the amount of the obligation, with interest and costs.

This judgment is erroneous. The defendant’s default in not appearing at the calling of the cause after the issues joined, did not authorize the judgment rendered against him. The plaintiff should have had the issues tried by a jury in the same manner as if the defendant had appeared. 11 Petersd. 644, note.

Per Curiam.

The judgment is reversed, and the proceedings subsequent to the issues set aside, with costs. Cause remanded, &c.  