
    (72 South. 800)
    No. 21923.
    ATZENHOFFER v. ENGELBRECHT.
    (Oct. 16, 1916.)
    
      (Syllabus by the Court.)
    
    Judgment <@=>141 — Default — Vacation — Confirmation of Default.
    Where a judgment by default has been set aside by the filing of an answer, and the case is tried and submitted, a judgment thereafter rendered, as in confirmation of the default, is unauthorized and must be set aside, since the record does not show that it was based upon the evidence taken on the trial, and may have been predicated upon other evidence of which defendant had no notice.
    [Ed. Note. — For other cases, see Judgment, Dec. Dig. <@=>141.]
    Appeal from Civil District Court, Parish, of Orleans; T. O. W. Ellis, Judge.
    Action by Leon A. Atzenhoffer against Odile C. Engelbrecht. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    Girault Farrar and Solomon Wolff, both of New Orleans, for appellant. H. S. Levy, of New Orleans, for appellee.
   MONROE, C. J.

This is an action for separation from bed and board and the custody of a child. Judgment by default was entered on October 22, 1915. Defendant filed an answer on October 28. The case was set down for trial on December 21, upon which date evidence and argument were heard, and the case was submitted. On February 23, 1916, there was judgment, on motion of plaintiff’s attorney, purporting to confirm the default which had been entered on October 22, 1915, and set aside by the filing of the answer on October 28th. Defendant has appealed from that judgment.

As the matter stood, the case could have been decided only upon the evidence taken on the trial, whereas, upon the face of the record, the supposed default may have been confirmed upon totally different evidence, of which the defendant had no notice. As, however, there was no default, there could have been, legally, no confirmation of default. The judgment appealed from is therefore reversed, and the case is remanded for further proceedings according to law, and to the views thus expressed.  