Opinion of the Court by

The judgment foreclosing the mortgage of Rock was rendered, against an objection of Evans, on the 21th of January, 1868.

At the same term Evans had been admitted as a party, and filed an answer alleging facts constituting a bar, if true, .to the plaintiff’s right to Nave a judgment forcing the mortgage, and which was made a cross petition, and was answered, and controverted by the plaintiff, and other parties.

According to section 395 Civil Code the .plaintiff was only entitled to a trial at that term, by consenting that the statements of the answer were true. If such consent had been given the appellant would have been entitled, on the averments of the answer to a judgment dismissing the action; no such consent having been *249given the trial was unauthorized and the judgment can not be sustained (Gruel & wife vs. Smally. 1 Duvall 358).

Wherefore the judgment is reversed for further proceedings not inconsistent with this opinion.