This was an action upon an appearance bond, commenced by the defendant in error, plaintiff below, against the plaintiff in error, defendant below.
After the pleadings were all in, the trial court sustained a motion for judgment upon the pleadings filed by the plaintiff and entered judgment against the defendant, to reverse which this proceeding in error was commenced. *Page 267
The Attorney General, appearing for the state, has filed a brief in which he says:
"The petition alleges the signing of the bond by John Carlton, principal, and plaintiff in errer as surety; that the said principal did not appear in the district court in Carter county according to the terms of said bond, and that thereupon the said principal and surety were duly called in court, and they failing to appear, the court declared said bond forfeited.
"The answer of plaintiff in error, among other things, contains a general denial. This puts in issue all the material allegations in the petition. It seems to us that the allegation that the principal in the bond failed to appear was a material allegation, and the same being put in issue, it required evidence to establish it, for which reason we feel that the trial court erred in sustaining motion for judgment on the pleadings."
As we fully agree with the Attorney General, the judgment of the court below is reversed, and the cause remanded, with directions to overrule the motion for judgment on the pleadings, and proceed with the trial of the cause.
PITCHFORD, JOHNSON, McNEILL, and BAILEY, JJ., concur.