The opinion
IIo.we, J.
The plaintiff sued for the possession of a promissory note for $9828 85, of which he claimed to be owner, alleging that it had been deposited with tliii defendant for safe keeping.
James AY. AYilson, administrator of the succession of Leonidas C. Perrill, intervened, alleging that the note had been deposited with the defend mt by Perrill to be delivered up to the maker, Chalaron, upon certain conditions, which had not been fulfilled, and that it should be returned to the succession.
Upon the trial, after the plaintiff had closed his evidence, the inter-venor moved to amend his petition and the court.granted permission. The amended petition alleged simulation and fraud in the transfer from. Perrill to T. H. Brown, under which the plaintiff claimed title. The plaintiff reserved a bill of exceptions to the ruling of the court in permitting the amendment, but we think the court did not err. The intervenor, so far as we can discover from the record, was first informed *462 of the circumstances under which the note was. transferred to the plaintiff, by the plaintiff’s testimony at the trial. This was of such a nature that justice required the amendment to he allowed. The “ substance of the demand ” was not changed. It was still a demand for possession -of the note. 12 Ann. 59; 8 N. S. 298. No issue was joined upon this amended petition either by answer or default, but the trial being proceeded with there was judgment for the intervenor. Under the facts, as disclosed, we regret the necessity of disturbing this judgment ; but we think it well settled that where there is no answer to an amended petition nor default taken, if the amendment be one of substance, and not of form, all subsequent proceedings are irregular and will be set aside. If there be no answer or default there is no contestatio litis which is the very foundation of the suit. Hughes v. Hamson, 8 N. S. 298; Heirs of Ballie v. Prudhomme, 8 N. S. 338 ; Caldwell v. Fales, 2 La. 130 ; Allain v. Preston, 2 La. 392 and 4 La. 13 ; Knight v. Knight, 12 Ann. 60.
In such a case the cause should be remanded that the contestatio litis may be formed and a new trial had.
It is therefore ordered and adjudged that the judgment appealed from be avoided and reversed, and that the cause be remanded to the District Court to be proceeded with according to law, and that the appellee pay the costs of the appeal.