1. As the action was not based exclusively on unconditional contracts in writing, but included, with the promissory notes, an account, the case was not one for rendering judgment by the court without a jury. According to the bench docket it was in default; no counsel was marked for the defendant, and in point of fact no plea was filed. There had been personal service of the petition and process on the defendant. The code in §3457 provides that in all cases of suits on open accounts where there has been such service and no defence is made either in person or by attorney at the time the ease is submitted for trial, it shall be considered in default, and the plaintiff shall be permitted to take judgment as if each and every item were proved by testimony. In the present case personal service was equivalent to proving the account, and the notes declared upon were introduced in evidence with the account, and thus the whole cause of action was established, and there was no error in directing a verdict.
2. There was no motion to open the default and make defence instanter, but counsel contended that there was in fact an appearance and a verbal answer to the case when it was called on the docket at the appearance term; and by his own testimony and that of his client he showed that this was true in fact. But the court disregarded this parol evidence and decided to abide by the docket. We cannot say that this was error. A good reason for abiding by the docket might be that counsel for defendant was in laches in not looking at the state *781of the docket and seeing in due time whether his name was marked thereon or not. Six months had elapsed from the time this docket was called and the entry of default made. Certainly that entry would not have been made if the court had heard counsel answer orally at the call of the case. The code provides that the general issue shall be considered as filed in all cases which are answered to at the first term. Code, §3458- But the appropriate evidence of a ease being answered to at the first term is an entry made at that term on the bench docket, the usual entry being the word “answer,” or an abbreviation of it, together with the names of counsel making the answer, these names being commonly put on the margin of the docket opposite the statement of the case. Here the usual evidence of answer was wanting, and no writing whatever, either plea or entry, was produced to vouch the fact. Inasmuch as answer is to be a substitute for a written plea, the fact of answer ought to be matter of entry on the docket, and it could well be regarded as laches on the part of counsel in not looking at the docket and having the proper entry made, if not at the appearance term, as soon thereafter as was practicable.
3. There was no error in denying a new trial on any of the grounds taken in the motion.
Judgment affirmed.