
    James Davis vs. J. W. Brady et al.
    
    
      July, 1841.
    A plea is in time previous to the actual entering of default, which may be done at the next regular call of attorneys after the default happens.
    Action of assumpsit brought by Brady et al. vs. Davis; plea, general issue; and afterward judgment was taken against Davis by default.
    The assignment of errors sets forth four causes, to wit:
    
      First. It appears by the record that the defendant in the court below made an appearance by plea of non assumpsit before default; and judgment is taken as by default without first disposing of the plea of non assumpsit.
    
      Second. It appears by the record and proceedings aforesaid, that the judgment was entered the first term next after the service of summons on the defendant below, and judgment is taken against him as by default in not appearing, without first proving the hand writing and signature of the said defendant to the instrument on which the suit is founded.
    
      Third. It appears by the record and proceedings aforesaid, that there was no jury to find the facts necessary to be established before the court could pass final judgment in the case.
    
      Fourth. The judgment was by default in a suit brought on an instrument of writing for the payment of money only — and the court assessed the damages without directing the clerk to do the same.
    Whicher for plaintiff in error.
    The plea should have been disposed of before the defanlt was entered. A jury should have been called to find the signature and other facts. It cannot be presumed that the facts were proved. The clerk may assess the damages, but a jury should have been called to find the signature.
    Lowe for defendant.
    The rule requires the defendant to file his plea by the calling of the roll on the morning of the second day of the term. The plea was not put in until the evening of that day, and this the reeord shows. By the operation of the rule the defendant was in default before his plea was in, and could only relieve himself of that difficulty by affidavit of merits, which he refused to do. There was, then, no plea to dispose of at the time judgment was taken upon the default according to the requisition of the rule. A different construction of the rule would render it nugatory for all useful purposes. If the party is allowed to file his plea six hours after the time expires, he may in six days, or any time before trial.
    The second objection is, that the signature to the note was not proven, it being the first term after summons was served. I would ask, how is tlie court to know that fact? The record does not show that it was or was not. Nor need it show the fact. The entry of a judgment should never undertake to recite what was or was not offered in evidence on the trial. The third objection merits no notice.
    We suppose the court will confine its decision to the points made by the assignment of error on the record. No complaint is made that a jury was not called to determine the question of signature. We ask the court to look at the ninth section of the Statute of Amendments.
    Whicher in reply. It should appear affirmatively that a jury was called. But it appears that a jury was not called.
   BY THE COURT.

The record in this case exhibits a material error. Before any default was entered, a plea appears to have" been filed, notwithstanding which, judgment was rendered by default. The counsel for the defendants in error contends that, inasmuch as the plea was not filed until the evening of the second day of the term, and as the rule’ of court requires, in effect, that it should have been filed by the morning of that day, the defendant below was actually in default, and that the plea was too late. Admit-ing that the rules adopted in 1839 are still in full force in Muscatine county, and that we can judicially take cognizance of that fact, still those rules only declare that where the deft, does not plead by the second day, the plaintiff may take a judgment by default at the next regular call of the roll of attorneys. If he do not avail himself of this privilege, the defendant may still plead. A plea is in time previous to the actual entering of a default, unless there is some express rule of court to the contrary. The transcript does not show such a rule here.

The judgment of the court below will therefore be set aside, and the case remanded to the District Court of Muscatine Gounty.  