On the hearing the defendants moved for a default against plaintiff for the want of a replication to their special answer, which was overruled, .and this is the first error assigned. It is enough to say that the proceeding was undeT the practice established by'the revised Code, which makes a replication unnecessary. The court granted the rule without requiring the production of any evidence other than that afforded by the pleadings and exhibits. For this cause the defendants moved for a new trial, which was overruled, and this is the second ground of error.
The plaintiff’s written statement or petition refers specially to the records of the court, and makes them a part of his application. These were before the court below but are not before us. They may have contained all the evidence requisite to sustain the plaintiff’s application. For instance, the clerk is required to keep a judgment docket and to enter therein the date of the issuance of all executions, and to what county and officeir issued. And he is also to enter on said docket the return of the officer, with the date of the return, the dates and the amount of all moneys received into or paid out of the office thereon, and these entries are to be made at the time, under a penalty of five hundred dollars for a failure so to do. And it may be that in this case the judgment docket showed some sort of a return of the officer, accounting for the non-return of the execution and that the same was unsatisfied. It is, impossible for us to say, under the circumstances, that the court had not sufficient evidence before it to justify the decision that was made.
Affirmed.