
    McFarland v. Lowry.
    1. Practice: default: judgment. Judgment by default may be entered against a party ■who appears in an action before a justice of the peace, but fails to plead.
    2. -: appeal. Upon appeal the Circuit Court may allow him to set forth any defense he may hare upon payment of costs accrued before the justice.
    3. Evidence: agency. A witness who was alleged to be an agent, was properly permitted to testify in behalf of the other party in denial of the fact of agency.
    
      Appeal from Mills Circuit Court.
    
    Tuesday, April 27.
    This action was commenced before a justice of the peace, and judgment there rendered for plaintiffs. Upon an appeal by defendant to the Circuit Court, a judgment was had in his favor. Plaintiff now’ appeals to this court. The other facts of the case appear in the opinion.
    
      Hale da Stone, for appellant.
    
      Phelps da DeZano, for appellee.
   Beck, J.

I. At the trial before the justice, defendant appeared and made objections to the sufficiency to tbe notice i. practice • which were not sustained, and, failing to plead to default. the action, a default for want of an answer was entered against him, and thereupon plaintiff proved up his claims, and judgment was entered accordingly. The abstract of the record before us shows that, upon the appeal in the Circuit Court, defendant filed an answer denying the allegations of the petition. Afterward plaintiff filed a motion to strike the answer from the files, on the ground “ that this being an appeal from a justice of the peace, where there was an appearance by defendant, and judgment on proof for the plaintiff, the defendant, although appearing, failed to put in an answer, he cannot put in a defense in this action.” The motion was overruled, and tbis action constitutes the first ground of error assigned.

1. A special appearance to object to the service of notice .renders further notice unnecessary, and will be held as a general appearance to the action. Code, § 3626, ¶. 3.

2. If a party, after an appearance, fails to plead under the rules prescribed by law, a judgment by default may be rendered against him. Code, § 2869.

3. When an appeal is taken from the judgment of a justice of the peace rendered upon a default, the defendant may file in the Circuit Couit any pleadings necessary to properly set forth any defense he may have to the action, and the costs accruing before the justice of the peace shall be'taxed against him. Code, § 3596.

The judgment rendered by the justice of the peace is of the character termed by the statute a default, and upon appeal from such a judgment, it is expressly provided that the defendant may answer to the action in the Circuit Court. It is very certain that the term default occurring in Sec. 3596, is to be taken in the sense in which it is used in the Code. Sec. 2869 describes judgments entered in c%ses where the party fails to plead as defaults. The judgment then against defendant was upon default, and under Sec. 3596, he was entitled to plead in the Circuit Court.

• Whether he was entitled so to plead as a matter of right, without showing an excuse for his default, or other matters, we need not determine. If such showing was necessary there is nothing before us to negative the thought that it was made to the Circuit Court; we are required to exercise the presumption that the proceedings of that court were regular, and that if a showing ivas necessary to entitle defendant to file the answer, it was made.

II. A witness who, plaintiff claimed, was the agent of defendant in respect to matters involved in the suit, was asked defendant if he was authorized by defendant to pay the debt of another person to plaintiff. He replied that he was not. The admission of this evidence is made the ground of an objection to the judgment. The witness denied bis agency, as claimed by plaintiff, and, as we understand the abstract, the evidence objected to was given as a part of, or in support of his denial. In that view it was not incompetent.

III. It is insisted that the judgment is not supported by the evidence. There was a conflict of evidence, but no such absence of proof in support of the judgment as will authorize us to disturb it.

Aeeibmed.  