By his motion to. dismiss upon the same grounds as alleged in his plea in abatement, the plaintiff in *247error must be regarded as having abandoned his plea and elected to take the objection to the jurisdiction by motion. That the objection was properly taken by plea and not by motion does not affect-this result. The court erred, however, in rendering judgment by default. The plaintiff in error had appeared to the action, and there should have been a rule to plead, and in default of plea the judgment should have been nil dicit. Wilcox et al. v. Field et al., 1 Col. 4; McNasser v. Sherry, id. 13.

The judgment of the court below is reversed, and the cause remanded for further proceedings according to law-

Reversed.