— The plea to the jurisdiction of the justice was founded on the supposition that it was apparent, on the face of the summons, the damages claimed exceeded fifty dollars. The amount claimed was not shown by the summons, but was shown by the complaint accompanying it, intended doubtless to serve the purpose of an indorsement of the cause of action on the summons, which the statute requires. The plea was’frivolous, and could properly have been stricken from the-files on motion. — Johnson v. McLaughlin, 9 Ala. 551. The court below did not err in disregarding it.
But there was error in refusing the defendant leave to plead not guilty. It is the right ,of a defendant to plead to the merits, at any time before a judgment by default, or nil dicit is entered against him. — Woosley v. M. & C. R. R. Co., 28 Ala. 536 , Rhodes v. McFarland, 43 Ala. 95.
There was also error in rendering judgment final, without the intervention of a jury to assess the damages. It is only when the action is founded on an instrument in writing ascertaining the plaintiff’s demand, that a judgment may be entered
Reversed and remanded.