When this action was brought, there was a right of review in any action in which issue was joined and judgment rendered, or in which there was judgment by agreement open to review. Gen. St., c. 215, s. 1. In the original action, there was no trial. No plea was filed, and no issue joined. The defendants *Page 439 appeared, and, on the suggestion of counsel that the verdict in the action on the mortgage settled all questions in controversy in both suits, judgment was entered in this action for the same amount as the verdict in the action on the mortgage. The appearance by the defendants for the manifest purpose of resistance, and the agreement for judgment, were equivalent to pleading the general issue. That plea denies the plaintiffs' right to recover, and there is no reason why the appearance of counsel may not properly be regarded as having the same effect. There is, in fact, no issue joined until the similiter is filed, but it is held that the issue between the parties is raised without this; that filing it is merely formal. Solomons v. Chesley, 57 N.H. 163. Where no special plea is filed, the case is tried upon the general issue whether it is actually filed or not. Prior to the insertion in the statute of the provision giving the right of review in actions in which judgment was rendered by agreement open to review, it was always understood that it secured a right of review whether an issue of fact was joined or not. Coburn v. Rogers, 32 N.H. 372,374.
The defendants concede that their appearance was a denial of the plaintiffs' claim. Everything beyond this was formal. If the omission to join issue does not bar the right, no good reason can be assigned why the failure to file the formal plea of the general issue should have that effect. But the defendants say that the entry of judgment was equivalent to a withdrawal of their appearance and a judgment on default. The judgment in the suit on the mortgage was on a verdict of the jury rendered on an issue joined, and was open to review. In the suit on the note, the parties consented to the same judgment, so far as it could be rendered, and that was for the same sum in damages, open to review. To give the judgment in this case, the effect claimed by the defendants would practically take away the right of review in the suit upon the mortgage; for, if the judgment in the suit on the note is final, it settles the amount for which the plaintiffs are entitled to conditional judgment, the only question at issue.
Motion to quash denied.
CLARK, J., did not sit: the others concurred.