1. An execution based on a foreclosure of a mortgage was levied on- land, and a claim was interposed. When the claim ease was reached for trial, neither the plaintiff nor his counsel was present, nor were the papers in the clerk’s office, and no issue was joined. The presiding judge permitted counsel for the claimant to establish a copy of the claim alone, and to proceed ex parte to introduce evidence in support of the claim, and directed a verdict finding the property not subject. Held, that this practice was unauthorized by law. The levy should have been dismissed.
2. Under former rulings of this court, a motion to set aside the verdict and judgment so obtained was not the proper remedy.
3. Although during the term when the verdict and judgment were taken a motion to set them aside was made, and to the overruling thereof a bill of exceptions was filed, this, not being a remedy for the error, did not prevent the filing, in due time, of a bill of exceptions assigning error directly upon the action of the court.
Judgment affirmed on the first hill of exceptions, and reversed on the second.