37 Mo. 144 | Mo. | 1866
delivered the opinion of the court.
The petition contained two counts, one upon a promissory note, and the other upon an account. At the return term, the defendant appeared and obtained leave to file his answer within sixty days before the next term. On the third day of the next term the parties, plaintiff and defendant, appeared by their counsel. The case was tried by a jury, and a final judgment was rendered upon the damages assessed. No answer had been filed, and no judgment by default, nil dicit, or confession, had been previously rendered. If the defendant had not appeared at all, or if he had refused to go into an assessment of the damages before the entry of a judgment by default, nil dicit, or confession, and'had taken proper exceptions to any other course of proceeding at the time, he might now be heard to complain of error committed. But having made no objection, and having voluntarily proceeded with an inquiry of the damages in the same manner as if an answer had been filed raising an issue for trial, or as upon an issue confessed, he must now be taken to have confessed the cause of action, and waived all right of exception to that manner of proceeding. In cases of default, nil dicit, or confession, relictá verificatione, the judgment, when for the plaintiff, is generally quod recuperet, and it may be either in
Judgment affirmed.