92 So. 408 | Ala. | 1922
Plaintiff sued for damages for conversion. Defendant duly filed a plea of the general issue. The court rendered judgment against the defendant "by default." There is no recital of proof being offered.
There was error in rendering final judgment for damages for trover — on simple recital of default — without evidence or without a writ of inquiry to establish the controverted issues of fact made by the pleadings. The count was not founded on "an instrument in writing or verified account ascertaining the plaintiff's demand" (Code, §§ 3970, 3971, 5356); and the amount of plaintiff's loss could only be ascertained by the aid of extrinsic evidence, which is not shown to have been introduced. Grigg v. Gilmer,
Under the common law a judgment by default or nihil dicit meant that the defendant offered no plea to the complaint, and thus tacitly admitted it to be just. Will's Gould on Pl. pp. 289, 528; 3 Black. Comm. 397. In this jurisdiction, however, nihil dicit and default are clearly distinguished. Grigg v. Gilmer, supra; Stewart v. Goode,
Defendant having interposed a plea to a count in trover, denying a conversion and liability therefore and the extent thereof, it was erroneous to disregard that plea and enter a judgment final for damages (by default) without evidence establishing the existence and extent of plaintiff's averred claims. Hall v. Nix,
The judgment is reversed, and the cause is remanded.
Reversed and remanded.
ANDERSON, C. J., and McCLELLAN and SOMERVILLE, JJ., concur. *264