This is an action which was brought on an attachment bond. There was a trial and judgment for the relator and the defendants appealed.
Statement r' It appears from the record that the defendant Hopper commenced a suit by attachment against the relator before a justice of the peace. The v property' of the relator — defendant in the attachment — was seized under the writ. It appears from the justice’s docket that there was a general *173appearance by relator to the. action on the return day of the writ. It also further appears that a jury was sworn to try the cause on the merits, after which the relator asked leave to file a plea in abatement, which being by the justice refused relator thereupon withdrew from the case. It further appears that the verdict of the jury was for the plaintiff. The docket further recites that “the defendant comes not but makes default, and it appearing from the evidence produced by the plaintiff that he is entitled to recover of the defendant, etc., the justice doth adjudge that plaintiff recover of defendant the sum so found with costs in this behalf expended and that he have thereof execution.” It further appears that subsequently the justice, on motion of the relator, set aside the judgment. There were no further steps taken in the case by either party before the justice of the peace.
Juat7achmecnurts: meSts0 the As the relator did not put in issue before the justice the facts alleged in the affidavit for the attachment by his verbal plea in the nature of a plea in abatement, but on the contrary proceeded to trial on the merits without doing so, he thereby confessed the matters alleged in the said affidavit for the attachment. Musgrove v. Mott, 90 Mo. 107; Richnitzer v. R’y, 60 Mo. App. 409.
triade£ault*new It is quite true that the judgment rendered by the justice was irregular in form, but after the relator had appeared to the action, as has been seen he did, it was not within the power of the justice to render a judgment by default. The statute only authorizes a judgment by default when the defendant, who has been duly served with process, shall neglect to appear within three hours after the return of the process. R. S., sec. 6235; Borgwald v. Fleming, 69 Mo. 212. The judgment was not by default and it was *174not therefore within the power of the justice to set the same aside. R. S., sec. 6237. It has been for a long while settled in this state that a justice of the peace can not grant a new trial after a verdict by á jury. Cason v. Tate, 8 Mo. 46; Downing v. Garner, 1 Mo. 751; Rutherford v. White, 3 Mo. 14; Weeks v. Etter, 81 Mo. 375. The action of a justice in granting a new trial or setting aside a judgment other than that by default is coram non jiidice.
Now since it sufficiently appears that the relator appeared to the action of attachment and proceeded to the trial of the cause on the merits, he must be held to have confessed the grounds thereof alleged in the affidavit, or which is in effect the same thing, to have waived his right to plead in abatement. This is the effect of his action both at common law and under our practice act. Fordyce v. Hathorn, 57 Mo. 120. How can it be said there was a breach of the condition of the bond when the relator confessed the grounds of the attachment, and especially so since there was a subsequent judgment for the plaintiff on the merits'?
The judgment, it is true, was improper in form, still it was for the plaintiff and. could not be set aside by the justice. The mere fact that the justice chose to designate the judgment as one of default did not, by any means, make it such. There was an appearance and trial by a jury on the merits, and consequently the judgment could not be by default. It seems to us quite clear that the trial court erred in refusing the defendants’ instruction in the nature of a demurrer to the evidence.
The judgment must accordingly be reversed.
All-concur.