
    ALBERT M. PETT and THOMAS REYNOLDS, Plaintiffs in Error, vs. ABRAM F. CLARK, Defendant in Error.
    ERROR TO DANE CIRCUIT COURT.
    A default cannot be entered against two defendants after-one of them has pleaded. A default so entered is irregular against the defendant pleading.
    If a party plead before default entered, though out of time, or without leave, if the plea he good in substance and form, his default cannot be entered while the plea stands. The proper practice in such case is, to move to strike the plea from the files.
    The facts in tbis case are sufficiently stated indbe opinion of tbe court.
    
      Abbott, Clarh & Coit, for tbe plaintiffs in error.
    
      Enos & Hall, for tbe defendants in error.
   By the Court,

Smith, J.

Tbis was an action of assumpsit commenced in tbe Circuit Court of Jefferson county, by tbe defendant in error against tbe plaintiffs in error. Tbe declaration was in tbe common counts, and was filed January 8tb, 1855. On tbe 19tb day of February, 1855, tbe defendant Reynolds filed bis plea of tbe general issue, together witb notice of set-off. On tbe 14th day of September, A. D. 1855, tbe default of both tbe defendants having been entered, a writ of inquiry was issued to tbe sheriff, which was returned witb an assessment of tbe plaintiff’s damages at $150.04 ; and on tbe 15th day of March, 1856, in term time, final judgment was rendered against both tbe defendants for tbe amount of damages returned as aforesaid.

It appears from tbe record that tbe default of both tbe defendants was entered after one of them had filed his plea. For aught that appears, the plea was regularly filed; at all events, it was good in substance and in form, and constituted a part of the record, and while there a default could not be entered against the defendant pleading it. If pleaded out of time, or if leave was not obtained, or if there was any reason why rhe defendant ought not to have been allowed to plead, the proper practice would have been to move to strike the plea from the files. Having done so, and the motion having been sustained, the default could be entered, but not while the plea remained on the files as a part of the record in the case.

The existence of the plea was doubtless overlooked in the hurry of circuit practice. But the entry of the default and assessment of damages was irregular, and the judgment must therefore be reversed.  