Clark v. Compton

15 Tex. 32 | Tex. | 1855

Wheeler, J.

A judgment, entered by default, under the Statute, (Hart. Dig. Art. 812,) does not ascertain the amount, and therefore is not final, in the first instance, but becomes a final judgment, when the amount is ascertained and entered on the record. It, however, is final in the first instance, as respects the right of the plaintiff and the liability of the defendant. Nothing remains to make it a final judgment, but to ascertain the amount. This is done by the Clerk (unless a jury is asked for by one of the parties) when the cause of action is liquidated and proved by writing ; but, if the cause of action is unliquidated, a jury is sworn ro assess the damagesof the plaintiff. (Ib.) In the present case, the judgment by default established the plaintiff’s right to recover, and fixed the de fendants’ liability, for the amount of damages which should be assessed by the jury. There is nothing in the record, from which it may be inferred that this right of the plaintiff was waived or abandoned by him. The jury was empanneled simply to assess the damages. That the defendants were guilty of the trespass, as charged, had been already established by the judgment by default. The province of the jury, therefore, was, simply to ascertain the amount of damage which the plaintiff had sustained by reason of the trespass. The plaintiff was under no necessity to introduce evidence to prove the fact that the defendants were guilty of the trespass as alleged. There is no error in the judgment and it is affirmed.

Judgment affirmed.