
    FRENCH vs. PUTNAM ET AL.
    Eastern Dist.
    
      May, 1839.
    APPEAL PROM THE PARISH COURT, FOR THE PARISH .AND CITP OF NEW-ORLEANS.
    Where judgment by default is confirmed, after answer filed to the merits, and prayer for a jury, it vitiates the proceedings, and the case will be remanded.
    This is an action on a promissory note, executed by the defendants, in which judgment, by default, was confirmed, after it had been set. aside, and an answer to the merits filed, with a prayer for a jury. The defendants appealed.
    
      Roselius, for the plaintiff,
    moved to dismiss the appeal, for want of testimony taken in writing, or statement of facts.
    
      Wharton, for the appellants,
    assigned errors on the face of the record.
   Rost, J.,

delivered the opinion of the court.

This is an action upon a promissory note. The defendants and appellants have assigned as errors apparent upon the face of the record: That a judgment by default, taken in this case, was made final, after it had been set aside, and they had answered to the merits, and prayed for a trial by jury. .

. The error exists, and in our opinion vitiates the proceedings. The cause should have been tried by jury, contradictorily, with the defendants; and it must be remanded for that purpose.

It is, therefore, ordered, adjudged and decreed, that the judgment of the Parish Court be avoided and reversed, and the case remanded, to be proceeded in according to law ; the plaintiff and appellee paying the costs of this appeal.  