
    No. 1636.
    Cureton v. Stokes.
    November Term, 1884.
    
      January 7, 1885.
    
      E. F. Stolses, for appellant. Wells Orr, contra.
   Opinion by

Mr. Justice McIver,

On March 31, 1883, Judge Wallace overruled defendant’s demurrer and gave him until April 3 to answer. Defendant did not then answer, but on April 4 gave notice of appeal from Judge Wallace’s order. On April 5 defendant gave notice of a motion for further time to answer. On April 10 plaintiff moved for judgment, which was refused upon the ground that there was an appeal pending. Defendant thereupon withdrew his motion. The appeal was heard and dismissed (20 S. 61, 582), and the remittitur filed in the court below March 17, 1884. On the same day defendant served a copy of his answer on plaintiff’s attorneys, who refused to receive it. On the call of the cause at the next term defendant asked that his answer be admitted. Judge Hudson refused this application, and judgment was rendered by default for plaintiff. Defendant appealed. Held—

1. That giving further time to answer is a matter within the discretion of the Circuit judge, and his ruling thereon is not appealable. This case distinguished from Ayer v. Ohassereau, 18 S. 0;, 597.

2. The rendition of a judgment by default is no violation of the right of trial by jury.

8. The plea of the statute of limitations can be made by answer only.

4. Error in the calculation of interest not brought to the attention of the Circuit judge, nor ruled upon by him, cannot be considered by this court.

Judgment affirmed.  