
    Irving et al. v. Montgomery.
    When the plaintiff takes judgment by default, for want of plea, the record must show there was no plea filed at the time of the rendition of the judgment.
    ERROR to the circuit court of Attala county.
    Huntington, for plaintiffs in error.
    Shackleford, contra.
    
   Mr. Justice Trotter

delivered the opinion of the court.

This case is brought before this court by a -writ of error to the circuit court of Attala county. The defendant in error commenced an action of assumpsit in the court below, on a promissory note made by the plaintiffs in error, and payable to H. B. Scarborough or order, and endorsed to him by the said Scarborough. The defendants filed the plea of non assumpsit and payment, with a bill of particulars, as required by the statute. There was no replication to the plea of payment, nor any notice taken of either plea in the further progress of the cause. The record shows that a judgment by default was taken against the defendants in the court below, for the amount of the note sued on. A motion was made to set aside the judgment which was overruled by the court. It was certainly error to render a judgment by default in the face of these pleas; they are an answer to the plaintiff’s cause of action, and there should have been some disposition made of them. It was insisted by the counsel for the defendant in error, that the pleas were not filed when the judgment was rendered; but there is nothing upon the record to warrant any such conclusion; and if such was the case, it was the duty of the defendant to have placed the fact upon the record.

The judgment must be reversed and the cause remanded for further proceedings.  