Opinion by

This was an action of assumpsit, in which judgment was rendered by nil dicit. It is claimed ■ that the court erred in rendering such a judgment after a plea *156of general issue had been filed. Certainly if such a plea was pending before the court, it was grossly erroneous to render a judgment by nil dicit; for the very character of the judgment implies a failure to plead. It appears by the transcript of the record that a plea was filed; but it does not appear to have been called up for the action of the court. In the case of Coutch and Kinsman v. Barton, Morris, 354, it was decided that it is the duty of the court to entertain such questions only as are called up for action. Still it may well be assumed that when a plea is properly filed in a case the court should recognize it. But the mere filing of a plea, without notice, reference, or attention to it by the pleader, is not sufficient to bring the matter within the cognizance of the court, especially when the party is in court at the rendition of the judgment and makes no objection. Indeed, such conduct would imply an abandonment of the plea. And we have, in this case, an authentic reason to infer an abandonment or withdrawal of the plea. In the judgment of the court, it is averred, that the parties appeared by their attorneys, and that the defendant failed to plead. Thus it appears that the defendant’s counsel was present, and by his silence, at least acquiesced in the proceedings of the‘court; and in its decision that there was a failure to plead. Had- not the record shown that defendant’s counsel was present when judgment was rendered, and failed to plead, it appearing by the transcript that there had been a plea previously filed, we should have been under the necessity of reversing the judgment. But the facts stated in the record entry of the judgment, under the particular supervision of the court, we must regard as paramount to the' plea copied into the transcript.

Generally, as a matter of wise precaution, it would be well for the district judges to inquire particularly into the state of pleadings before rendering a judgment by nil dicit. Under the circumstances of this case, and the judgment appearing to have been justly entered upon a plain note of hand, it must be affirmed.

Judgment affirmed.