delivered the opinion of the court.
The- record shows that three judicial days did not elapse in this case between rendering judgment by default and entering up final judgment. The defendant and appellant assigns it for error, and has prayed the judgment may be reversed. The appellee has drawn our attention to the difference in the phraseology of the articles of the Code of Practice, in relation to new trials and rehearings by the Supreme Court,- and that respecting judgments by default. In the former the terms “three judicial days” are used. In the latter, “three days,” *115omitting the word “ judicial,” is the time assigned after default to make the judgment final.
Notwithstanding the support which the appellee’s case fairly derives from the difference .in the language used in , _ . „ ... , . . . . , . regard to matters nearly similar, we still think the judgment was erroneously given below. The answer could not be filed until the judgment by default was set aside, and that could not be done but in open court. The law surely did not con-. template that a judgment by default for not answering, and an answer, should stand at one and the same time on the records of the court. The 314ik article of the Code of Practice speaks of the judgment by default being set aside, and contemplates it to be done before the answer can be put in.
It is, therefore, ordered, adjudged and decreed, that the. judgment of the Probate Court be annulled, avoided and reversed: And it is further ordered and decreed, that this cause be remanded, to be proceeded in according to law, the appellees paying the costs of this appeal.