
    Gibson v. Smith.
    Default cannot be taken while demurrer is pending. It is error to enter a judgment hy default against a defendant who has a demurrer on file which has not been disposed of.
    
      Error to District Court, Arapahoe County.
    
    Mr. J. Bright Smith, for plaintiff in error.
    Mr. L. B. France, for defendant in error.
   Harding, C. J.

On the 14th day of April, 1863, a writ of error issued from this court on behalf of GHbson, and this case is before us for our action.

The whole case turns upon the first error which is assigned in plaintiff’s brief and is as follows:

That the said court erred in giving judgment by default against the said Gribson, he having appeared and pleaded to the declaration previous thereto by general demurrer, upon which no decision whatever appears to have been given. 4 Scam. 53, 54.

We think that it is clear, that the district court committed an error in entering judgment by default against the defendant in the court below, when he had appeared to the action and filed his demurrer to the plaintiff’s declaration, and when such demurrer was undisposed of, and in impaneling a jury to assess the damages.

Per curiam.

The judgment is reversed for further proceedings in the district court, with costs, etc.

Reversed.  