
    Gomer v. Shiner.
    A motion to dismiss for want of jurisdiction, after plea to tlie jurisdiction filed, is a waiver of the plea. Where the defendant appears, a rule to plead may he entered, and in default of a plea judgment nil elicit should bé entered.
    
      Error to County Court of El Paso County.
    
    The defendant in error brought her action against Gomer, the plaintiff in error, in the county court, in assumpsit. The defendant appeared and filed his plea to the jurisdiction of the court. On the day following he moved by his attorneys, Wilkes and Sweet, to dismiss the cause for want of jurisdiction; the motion was denied. The attorneys thereupon withdrew from the case; the court entered judgment by default, and a jury was called who assessed damages in favor of the plaintiff in the sum of three hundred and ninety-five dollars, upon which judgment was entered against the defendant for that amount with costs. To reverse this judgment Gomer prosecutes this writ of error.
    Mr. J. W. Horner and Mr. D. J. Haynes, for plaintiff in error.
    Mr. L. J. Laws, for defendant in error. .
   Elbert, J.

By his motion to. dismiss upon the same grounds as alleged in his plea in abatement, the plaintiff in error must be regarded as having abandoned his plea and elected to take the objection to the jurisdiction by motion. That the objection was properly taken by plea and not by motion does not affect-this result. The court erred, however, in rendering judgment by default. The plaintiff in error had appeared to the action, and there should have been a rule to plead, and in default of plea the judgment should have been nil dicit. Wilcox et al. v. Field et al., 1 Col. 4; McNasser v. Sherry, id. 13.

The judgment of the court below is reversed, and the cause remanded for further proceedings according to law-

Reversed.  