The plaintiff, an attorney, sued the defendants in the TIolt circuit court to recover the sum of fifty dollars on account of a balance due for professional services rendered defendants, and sixteen dollars for money advanced for defendants.
Defendants filed answer. Thereafter the answer was withdrawn, and defendants filed motion to strike out part of the petition. The cause was then, on application of plaintiff, sent by change of venue to the Buchanan circuit court. In the vacation of that court, to-wit, on the eleventh day of August, 1887, the plaintiff by letter notified defendants’ attorneys that on the twenty-fourth day of that month he would file an amended petition in the case, the said eleventh day of August, 1887, being still in the vacation of court. lie also inclosed a copy of the petition he proposed to file.
The regular term of the Buchanan circuit court began on the fifth day of September, 1887. On the ninth day of September, it being the fifth day of the *481term, the plaintiff took the judgment by default .against defendants for want of answer. And on the next day the court set aside this judgment of default, and proceeded to render final judgment against defendants as for want of answer. The defendants thereafter,. during the term, appeared and filed motion to set aside this judgment, setting up, among other grounds, certain facts tending to show that defendants ’ attorneys had been misled by certain correspondence had with plaintiff; that defendants ’ principal attorney, who filed the said answer, was absent when his answer was withdrawn, and was not aware of the fact that his associate counsel had filed said motion, and claimed that he was under the impression that the case was still at issue on the first answer; and claimed that at all events the motion was - undisposed of ; and that defendants had' no notice of the filing of the amended petition, and that the judgment should be set aside to allow them an opportunity to •plead to the amended petition. This motion was. accompanied with affidavits in support, and an answer showing a meritorious defence to the plaintiff’s cause of. action, which they proposed to file if permitted. This motion was overruled, and defendants have appealed.
Under the view we entertain of this case it is unnecessary to discuss all the questions raised by counsel on this appeal.
If it be conceded to plaintiff that, while the cause stood at issue on the original petition and motion, he had the right in vacation, without leave of court first had thereto, to file an amended petition, he must concede that his act was subject to the provisions of section 3555, Revised Statutes. “The party filing any replication, answer or amended pleading or supplemental pleading, in vacation, shall give written notice of the time of filing the same to the adverse party, or his attorney ; and until such notice is duly served, such adverse party shall not be deemed to have had notice thereof, for the purpose of pleading.” Our construction of this section *482is, that it applies to a pleading filed, and not to one to be filed. The party filing such pleading shall give notice of the time of filing the same. The obvious meaning of which is, that when such pleading has been filed in vacation, then the party so filing shall give the adverse party notice of the fact — the act done. It does not contemplate notifying the other party of a mere intention to file snch pleading at some future day. The adversary has nothing to do with the mere declaration of an intention to do the act. That intention may, for aught he knows or cares, be afterwards abandoned. It is an amended pleading already filed he is required to take-notice of and plead to. Why notify him in ad vaneé of a mere purpose to do an act in the future when he would have no right to appear before the clerk in vacation to resist it, and the clerk would have no power to hear or pass upon any contention that might arise over it. Until notice of the fact that such pleading has been filed has been given to the defendants they were not required to plead thereto. The judgment, for want of answer, therefore, was premature, and the same should have been set aside.
The judgment of the circuit court is accordingly reversed, and the cause remanded, with leave to defendants to plead to the amended petition, as they offered to do.
All concur.