
    Leroy A. Kidd v. Ezekiel Harris.
    Judgment by default. — It is error to enter judgment by default on the declaration, whore there is a valid plea to the action in file. ■
    IN error from the Circuit Court of Jasper county. Hon. John Watts, judge.
    
      T. J. Wharton, for plaintiff in error.
    
      J. R. JElliott, for defendant in error.
   Eisher, J.,

delivered the opinion of the court.

This was an action founded upon the promissory note of the plaintiff in error, in the Circuit Court of Jasper county.

The note is payable to Parkman or bearer. The suit was brought in the name of Harris, as bearer of the note. A demurrer was filed to the complaint, but it does not appear by the record, what action the court took in regard to it. We may infer, however, from the fact of the defendant below pleading to the merits, that that demurrer was overruled or abandoned.

An amended complaint also appears in the record, by which it appears that Harris, the bearer of the note, sues for the use of Parkman, the payee. A demurrer was also filed to this complaint, which appears to have been sustained by the court below. The case then stood upon the first complaint, and the pleadings thereto, yet a judgment by default appears to have been entered.

The pleadings of the parties presented two issues; first, the general issue on the complaint, and secondly, a plea denying that Harris was the owner of the note ; and under this state of the case • no judgment by default could have been entered. The cause should have been submitted to a jury.

Judgment reversed, and cause remanded.  