
    Ben Perry et al v. Thomas L. McKee et al.
    Judgment — Action on Bond — Assessment of Damages.
    In an action, founded on bonds of defendants to perform the judgment exhibited and the amount sought to be recovered was specifically stated in accordance with the judgment, the defendants failing to answer, the court is authorized to rpnder a judgment without a jury to asess damages.
    APPEAL FROM OWEN CIRCUIT COURT.
    December 9, 1868.
   Opinion oe ti-ie Court by

Judge Hardin :

Although the verdict of the jury in the suit of McKee, &c., vs. Frank Perry may have been irregular or erroneous’ in not conforming to the 360th section of the Civil Code, nevertheless the judgment was not void and could not be so regarded in this section.

Nor was the misjoinder of defendants, if in fact they were not properly joined as parties separately liable on the same contract, an available objection, upon the general demurrer in this case. (Civil Code, section 121).

As the action was founded on the bonds of the defendants to perform the judgment of the court and the judgment was exhibited and the amount sought to be recovered was specifically stated in accordance with the judgment, and the defendants failed to answer, the court was authorized, under section 409 of the Civil Code, to render judgment in the action without a jury to assess damages.

We perceive no available error in the judgment.

Wherefore, the .judgment is affirmed.  