Lucius G. Fisher, Pl'ff in Error vs. William C. Chase, Def't in Error

Lucius G. Fisher, Pl’ff in Error vs. William C. Chase, Def’t in Error. Where the Defendant demurs to the Plaintiffs declaration, and the demurrer is overruled, the Plaintiff cannot properly assess his damages until the default of the defendant is taken. On the overruling a demurrer, interposed by a defendant to the declaration, the defendant has the right to plead issuably, at any time afterwards until his default shall be taken by the adverse party. If a party files an issuable plea, after bis demurrer to a declaration has been overruled, and before any default has been taken against him, it is irregular for the Plaintiff to assess his damages and take a judgment therefor. Error to the late District Court of Rock Count y. The defendant in the Court below, demurred to the whole declaration, and on argument, that Court overruled the demurrer, and thereupon the Plaintiff below assessed his damages without fiaviag taken the defendantVde-fault, or any rule for the assesshient. The defendant below filed an issuable plea, before the ' assessment of the Plaintiff’s damages,‘and the case comes here for the alleged error of assessing the damages after plea put'iiu Knowlton, for plaintiff in Error, Sleeper, for'defendant in Error. [MAJORITY — Lakabee, J.] By the Court.— Lakabee, J. ~The record in this causo shows that a writ of enquiry was awarded, and the plaintiff’s damages assessed, without a default having been first entered against the defendant. It also appears that after the demurrer was overruled, the'defendant filed a plea of the general issue. There is nothing to show that this plea was not properly filed, and an issue formed. Yet, notwithstanding this state of facts, a writ of enquiry was awarded, and damages assessed. The judgment of the District Court must be reversed, and the cause remanded for further proceedings. Judgment reversed.