15 Mo. 187 | Mo. | 1851
delivered the opinion of the court.
The only point necessary for us to notice, is the act of the court below in giving the final judgment.
After deciding the demurrer in favor of the petitioners, and giving time to the defendant to answer, which the defendant neglected to do, the court gave judgment for the petitioners by nil dicit, and assessed the damages to the amount of the balance of the account due, as appears by the same in the petition, and interest thereon, making in all the sum of $122 03, without any proof of the items of the account claimed in the petition.
This we think was error. The court after the failure of the defendant to answer, very properly gave the judgment by default or nihil dicit-, and if it had required the petitioners to make proof of their demand, and on proof had rendered final judgment for the amount so- proved, this court would not have interfered.
We see no force in the appellant’s objection about the neglect of an order to have the damages enquired into and assessed at the same term; and without such order, the enquiry must notbe made until at the next term. All this is rendered necessary by the provisions of the act of 1848 and 9, commonly called the new code, the provisions of which, we apply to the proceedings in this case.
We do not consider that the demurrer admits the items of an account set forth in the petition, so as to do away with the necessity of proof. If the judgment be given on demurrer to such a petition, and defendant should refuse to answer, an enquiry of damages becomes necessary, and this enquiry may be had before the court, if the petitioners waive a jury, or it may be before a jury; See code of practice, Art. XII, § 2.
We reverse the judgment of the court below, so far as respects the' enquiry of damages only, and we require the court to take proof of the petitioner’s accounts before a jury, unless the petitioners waive a jury, in which event, the court is, itself, to take the evidence and assess the petitioner’s damages upon the judgment by default, which remains undisturbed.
This case is, therefore, remanded to the ojsurt below for further proceedings in accordance with this opinion,
