
    Benjamin May v. John F. Ball.
    When a party acknowledges service of a rule on him to set aside a judgment, and contests it on its merits, it has the effect of a waiver of all exceptions to the form of proceeding.
    Where judgment was rendered without a hearing or consent of parties, held^ that although rendered in favor of the plaintiff, he had a right to have it set aside if it was not such a judgment as he wanted.
    APPEAL from the Sixth District Court of New Orleans, Ootton, J.
    
      Emerson & Huntington, for plaintiff and appellant.
    
      A. Q. Semines, for defendant.
   Spofford, J.

In this ease it appears that a judgment was taken upon what purports to he a confession, by the defendant sous seing privé, before the cause was at issue, and without the consent or knowledge of the plaintiff or his counsel

It was erroneously stated upon the minutes of the lower court that this judgment was rendered upon motion of the plaintiff’s counsel.

Upon discovering this error, the plaintiff took a rule upon the defendant to show cause why the judgment should not he set aside and annulled. The defendant’s counsel acknowledged service, and contested the rule upon its merits, without taking any exception to the form of proceeding.

The facts stated above were proven, and no explanatory evidence was given by the defendant’s counsel to show how such anomalous proceedings were brought about.

The District Judge dismissed the rule, because he thought he could not disturb a judgment which he had signed. We think this was an exception to the form of proceeding which had in effect been waived by the defendant.

When there is no reconventional demand, a party plaintiff is at liberty to discontinue his suit at any time. Judgment cannot be entered against his will unless due steps have been taken to put the cause at issue and have it fixed for trial, or unless he is in default himself.

The judgment in this case was improvidently rendered without a hearing or consent of parties, and when the plaintiff was not in default. Although the judgment is in his favor, he may have it set aside, if it was not such a judgment as he wanted. The plaintiff here asserts that he did not desire the judgment to be rendered, and that he is aggrieved by it.

It is, therefore, ordered, that the judgment on the rule be avoided and reversed, and that the prayer of the rule he granted, the judgment rendered on the 3d and signed on the 5th December, 1856, set aside and annulled, and the •cause remanded for further proceedings, according to law; the costs of this appeal to be borne by the defendant and appellee.  