McCLELLAN, J.
Common-laAV certiorari.
If the theory of the petitioner is maintainable, as it is presented in this application, viz., that the judgment assailed is void, and if it is of record apparent, common-law certiorari is the proper remedy to review and annul the judgment.—Independent Pub. Co. v. Amer. Press Co., 102 Ala. 475, 490, 15 South. 947.
These are the facts: Pinkney Scott instituted detinue against the petitioner, Allen, in the Bessemer city court. His complaint was: “The' plaintiff claims of the defendant the following personal property, to avíL *113one large bay horse, named John, with tail whipped off, with the value of the hire or use thereof -during detention, to wit, from the 31st day of August, 1909.” The summons was served on the defendant on August 31, 1909, and the direction to take possession of the animal, the plaintiff having given the requisite bond, executed. The defendant, in his turn, gave a forthcoming bond, and the property was delivered to him. Defendant, not having pleaded within 30 days after service, was in default on Friday, October 1, 1909. On that day the court permitted the amendment of the complaint. It appears from the whole return, after alias certiorari, that the amendment inserted, after the word “off,” and before the words, “with the value,” these ivords: “Valued at $200.00, and plaintiff further claims of defendant the sum of $60 damages and $1 per day.” After that amending, the court rendered judgment, by default, for the plaintiff for the horse described in the complaint, “or its alternate value of $200, together with $31 detention and a further sum of $50 damages as further detention assessed by the couw to the date of the trial.” It thus affirmatively appears, and it is not otherwise contended, that there was no service of the amendment or amended complaint on the defendant, before judgment by default was rendered.
The petitioner, in several ways, invoked the court below to set aside the judgment and to quash the execution, folloAving in orderly course from the judgment — • in all of which the petitioner was denied relief — before seeking review here. The first basis of insistence that the judgment is Amid is that neither the amendment nor the amended complaint was served on the defendant before the default was adjudged. Primarily these principles pertain to the question presented and to be decided.
*114The measure of damages in the action of detinue is the A7alue of the hire or use of the chattel during the period of AXTongful detention.—3 May. Dig. pp. 61, 62. Interest on the value of the hire or use is not an element of the damages in such case.—Fralick v. Presley, 29 Ala. 457, 65 Am. Dec. 413. Ordinary Avear and tear of the chattel is included in the rent or hire thereof. Hence damages for Avear and tear cannot be added to those aAvarded for rent or hire in such action.—White v. Sheffield, 90 Ala. 253, 7 Southt. 910. Generally speaking, a default only admits matters Avell pleaded.—23 Cyc. pp. 740, 741, 752 ,and notes; McGehee v. Childress, 2 Stew. (Ala.) 506.
In this instance the court had jurisdiction of the subject-matter, and of the person. The amendment, ex parte, fixed the value of the animal and enhanced (let us assume) the amount of the damages claimed in the original declaration. Taking the defendant’s failure to plead xvithin the requisite period as an admission of the matters then (after amendment) alleged in the declaration, it is obvious that the court’s fault, jurisdiction ed as stated above, Avas, at most, in exceeding, in adjudging, the limits made by the averments of the original declaration in respect to the Aralue of the animal and in the amount of the damages claimed. In short, the defendant’s default admitted the Avrongfui detention-of the animal, and that the plaintiff Avas due, at least, some damages for the hire or use thereof; the amoun ts, in both .instances, being unstated in the original declaration. The result, then, of the alloAving of the amendment and, thereupon, the juridical conclusion that defendant admitted the value of the animal and the damages for the detention, as alleged in the amendment only, Avas to unwarrantably conclude as upon an admission by defendant in excess of AArhat he *115merely might have been adjudged liable for, under the allegations of the original declaration. Certainly, that consequence did not involve jurisdiction, for plenary jurisdiction the city court already had. If it did not involve jurisdiction, obviously the act of the court was an error — irregularity—only, and in no sense operated to render void the judgment so entered.—6 Ency. Pl. & Pr. p. 53; Carr v. Sterling, 114 N. Y. 558, 22 N. E. 37; Freeman on Judgments, § 129. See Bash v. Van Osdol, 75 Ind. 18*, and May v. Bank, 9 Ind. 233, Avhere the question Avas presented by and treated on appeal.
It is averred in the petition that by rule duly promulgated by the city court, and in force, the chancery, default, and motion dockets were heard on Saturdays. This judgment by default Avas taken on Friday. The defendant was in default on that day. The insistence is that the judgment taken on Friday, instead of Saturday, is void. We Avill assume, for the occasion only, that the rule had the force of a statute; and, if so, the granting of the defeult was, at most, premature, and, hence, an irregularity—6 Ency. Pl.—Pr. p. 94, citing, in note 2, our decisions supporting the text.
In my opinion the writ should be denied.
Anderson, J., concurs in the opinion of the AAulter.
Doavdell. C. J., and Simpson, Mayfield, Sayre, and Eaeans, JJ., hold that the amendment Avas immaterial, and that judgment entry shoivs assessment of damages by the court, and concur in the opinion as respects the day on Avhich the default was taken.
Writ denied.