| Mich. | Apr 20, 1860
Under the statute (Gomp. I. Gh. 130), the Circuit Court can only refer to the clerk for assessment and report those cases in which a written obligation or contract is set forth in the declaration as the cause of action. This reference is made after interlocutory judgment, and the obligation or contract must be in writing, and be either a bill of
In the present case, the declaration containing only the common counts in assumpsit, the clerk clearly had no right to assess, but the damages should have been ascertained by the court or by a jury. The order of reference appears to have been to the court, as was proper; but the judgment entry shows, that the clerk actually ascertained and reported the damages, that the court assessed damages upon such report, and that the judgment was rendered thereupon. It was suggested, on the argument, that as the order of reference was in regular form, tins court, after judgment, should presume the subsequent proceedings to have been regular and in conformity with it, upon the well settled maxim that every presumption should be in favor of the judgment. But the order was the entry of the plaintiff’s attorney, made of course, after default; while the judgment entry is the act of the court; and it is that which the law presumes imports absolute verity. No presumption can therefore arise against the judgment, based upon the order of reference; for the whole record may be, and is undoubtedly true. Had the judgment been entered in the form prescribed by law (Comp. L. §4481), this question could not possibly have arisen. This section provides, that the record shall^ state no reference to the clerk, nor any proceedings in consequence thereof; but that the damages
It is further contended, that as the statute (§ 4437), provides, that in suits wherein the clerk can not assess the plaintiff’s damages, such damages may be assessed by a jury, the duty of referring the question to a jury is imperative, and that an assessment by the court without a jury is illegal and void. Such was undoubtedly the case before the adoption of the Constitution of I860, and the subsequent legislation respecting juries. But by the 2'Ith section of article VI. of the Constitution, it is provided that the right of trial by jury shall remain, but shall be deemed to be waived in all gívíI cases, unless demanded by one of the parties in such manner as shall be prescribed by law. By the provisions of the act of 1853 {Comp. L. §3435), all issues and questions of fact shall be tried by the court, unless a jury be demanded by one of the parties, in a manner prescribed by the rules of court; and by the Circuit Court rules, this demand is required to be made in writing.
These provisions of the Constitution and statute evidently contemplate a dispensation, in all cases, -with a jury, unless demanded by a party having a right to make such demand, or when ordered by the court. Now, in cases of assessment after interlocutory judgment, the amount of damages to which the plaintiff is entitled, although not put in issue, is still a question of fact; and by suffering default, the defendant has deprived himself of the right of tendering an issue; but if he has appeared, he, as well as the plaintiff, may
The judgment of the Circuit Court must be reversed, and the case sent back for re-assessment of damages.
The rule on this subject is as follows: “ Rule 61. A party desirous of a trial by jury shall make his demand for a jury in writing, and file such demand with the clerk on or before the first day of the term for which the cause is noticed* for trial, and at or before the first call of the calendar; otherwise he shall bo deemed to have waived his right to a jury: Provided, however, that the Judge of any Circuit Court may, whenever he deems it advisable, by a rule of said court, require the demand for a jury to be made and filed within sucli time before the commencement of any term thereof, as may be designated in such rule.”