108 Tenn. 719 | Tenn. | 1902
Sledge, Wells & Co. brought suit ••against Emmet Taylor in the Circuit Court of Shelby County for $1,148.50 damages, claimed by reason of the falling of a defective building which they had leased from Taylor. The declaration was filed on the 19th of September, 1900, alleging the ownership, of the building in Taylor, and the lease to Sledge, Wells & Co., and a copy of the lease is made part of the declaration. It is averred that Sledge, Wells & Co. took possession of the building believing it to be safe, but it was not, and the building fell and damaged them to the extent of $1,148.50. The declaration demanded a jury to try the issues to be joined. On February 16, 1901, judgment by default was taken and entered, and the order recites that a writ of inquiry is awarded to ascertain the damages, as they do not appear by simple calculation from the face of the papers, and a jury will come to assess the same.
The inquiry was not executed until the next term, but on the 4th of June, 1901, the following order .appears: “This day came the plaintiffs, by their ■attorney, and waiving a jury to assess their damage, and consenting that said damages may be assessed by the Court upon the writ of inquiry heretofore awarded in this cause upon the judgment by default entered herein, and proof being heard by
On the 27th of September, 1901, Taylor filed his petition for writ of error and supersedeas, which was granted by one of the Justices of the Court.
It is now assigned as error that the Court improperly found the damages, instead of leaving the matter to a jury to ascertain and fix them. It is insisted that the holding of the Court in Warren v. Grocery Co., 12 Pickle, 574, is conclusive of the present case. We think the contention not well made. In that case the party who had demanded a jury. waived it, over the objection of the opposite party, and it was held that by permitting the plaintiff to waive the jury over the objection of defendant unwittingly deprived the defendant of the benefit of a jury trial, since it was not incumbent on the defendant, in view of the plaintiff’s demand, to make a similar one. But in the present case no objection was made by the defendant, and he permitted the plaintiff to make the waiver and the trial Judge to hear the proof and fix the amount without objection or appeal, and it is too late after final judgment to complain. The jury having been once called for by the plaintiff, he could not dispense with such jury over the objection of defendant. But either party waives his rights to a jury by failing
- We think it was not error to execute the writ, of inquiry and fix the damages at a term subsequent to that at which the writ was awarded, if it was not executed at the latter term, and no notice-to adverse party would, in such case, be necessary.
The writ of error and supersedeas will be dismissed at cost of petitioner, and proper judgment will be entered here on the supersedeas bonds.
A question is raised as to the proper judgment, on the bond for supersedeas. The fiat for the su-persedeas prescribes a bond for the judgment, interest and costs, and the bond given, conforms to this, requirement. It is insisted that judgment shall be. given against the surety on the prosecution bond for the amount of interest on the judgment in the Court below, and costs, but not for the amount of the judgment itself, and that a proper supersedeas bond in the present case under the statutes would have been for damages and costs only, and not to cover-