Streff v. Colteaux

on beheaeing.

In a petition for rehearing, counsel urge that it is error to permit a default to be taken on a pleading to which an interposed demurrer remains undisposed of. The abstract filed by the same counsel shows that on October 29, 1895, the demurrer to the plaintiff’s declaration was overruled; this was to the amended declaration, to which Mathias P. Streff demurred, being the only declaration then in the case and on which default was entered November 7, 1895.

There is a plain distinction between actions on executory contracts and actions on contracts fully performed, so that nothing…