on rehearing.
Per Curiam.— Defendant contends that the judgment rendered in the cause was a judgment by default and that since there was an answer on file consisting of a general denial such judgment was erroneous. The facts were that an answer was filed by defendant, but when the case was called for trial he failed to appear. The court thereupon heard the petition and the evidence and rendered the following judgment: “Now at this day, this cause coming on to be heard, comes plaintiff in person and by attorney, and defendant, who has been lawfully summoned, comes not, but makes default; thereupon the cause is submitted upon the petition and evidence, and the court being fully advised in the premises finds that defendant is endebted to plaintiff in the sum of $878. It is therefore ordered and adjudged by the court that plaintiff have and recover of defendant the sum of eight hundred and seventy-eight ($878) dollars with interest thereon from this day, and all costs, and have hereof execution.”
We concede that it is error to render judgment by default when an answer is on file undisposed of, defendant not appearing at the trial. This is well established by authority elsewhere. It has been stated in this state as well. Ruch v. Jones, 33 Mo. 393. The judgment here spoken of is of course that technical judgment by default known to -the law which adjudges the cause of action to be confessed. Was the judgment here questioned such a judgment? We think not. There are defaults recognized under our practice on the part of a defendant which may figure in the judgment other than a default of appearance to the action.
*344The defendant here had appeared to the writ and had answered hut he defaulted in appearance to the trial. No more than a recital of this was entered in the judgment here. The court does not adjudge the petition to be confessed, and with the exception of the word “default,” which may have more than a single application, there are none of the distinguishing marks of a judgment by default appearing in this judgment. The court gave full effect to the issue made by the answer. It took nothing as confessed, and proceeded to hear the evidence in the cause. It proceeded exactly as it would have done had defendant taken part in the trial and failed in his defense. In other words, he has had the full benefit of the issue he presented. When a defendant answers the petition and then defaults or fails to appear to the trial, the proper proceeding to a legal determination of the case is to go on with the trial by hearing the evidence the same as if the defendant was present. Covell v. Marks, 1 Scammon, 391; Manlove v. Gallipot, Ib. 390; Terrill v. State, 68 Ind. 155; Maddox v. Pulliam, 5 Blackf. 205; Patton v. Hazewell, 34 Barb. 121.
It is next insisted that the judgment is for more than is covered by the allegations of the petition. This contention is based upon the assumption that the petition altogether fails to allege that plaintiff incurred any expenses. Since the defendant failed to make any objection to the petition, and since a finding and judgment has now been had upon it, we must give the plaintiff tfie benefit of every intendment in its favor. The petition does not charge in terms that he was put to any expense, but it does allege that he was employed as a traveling salesman for a year at certain compensation and his expenses. It also charges that he entered upon the duties of such traveling salesman, in pursuance of the employment, and performed such duties *345"until a certain date when he was wrongfully discharged. Now we cannot say what the facts may have shown, as to the expenses, or what kind or extent of expenses were included in the contract. ' We cannot say that such expenses did not include his hoard, etc., in which event the amount of the judgment could he easily accounted for. The judgment will he entered as -directed in the foregoing opinion.