
    Citizens' Bank v. J. R. Beard et al.
    Where after judgment by default, the defendant comes in and moves to set it aside upon filing what he styles a peremptory exception, he will not be allowed after-wards to contend that his exception was merely a dilatory exception, and that the case was not at issue upon the nferits. The plaintiff may fix the cause for trial, and the judgment obtained is final upon the merits.
    APPEAL by defendant from the Fifth District Court of New Orleans, Buchanan, J.
    
      Pitot, for appellee.
    
      Lockett 8f Goold, for appellant,
   The judgment of the court (Eustis, C. J., dissenting) was pronounced by

Slidell, J.

Before the exception was filed a judgment by default had been taken, which, in contemplation of law, is a joinder of issue. The defendant, on moving the court to set aside the j udgment by default, expressly termed his plea a peremptory exception, knowing that he had not a right under the statute to file a dilatory exception after a judgment by default. Whatever, therefore, be the character of the exception, be it dilatory or peremptory, the plaintiff has a right, for the purpose of the questions now presented, to the designation which the defendant chose to give to his own plea before- the district judge.

Viewing the plea as a peremptory exception filed after a judgment by default, there was no irregularity on the plaintiff’s part in treating the plea as standing as a defence, and bringing the cause to trial in the ordinary manner as in case of an answer.

Judgment affirmed, with costs.  