
    CASE 22 — PETITION ORDINARY
    DECEMBER 24.
    Smith & Thornton vs. Curtis.
    APPEAL FROM DAVIESS CIRCUIT COURT.
    1. Allegations of value are not admitted by the failure of the defendant to answer.
    2. The judge might, in such case, render judgment without a jury; but the record should show that he heard evidence as to the extent of damages. (14 B. M., 394.)
    Sweeney & Pope, for appellants,
    cited Civ. Code, sec. 153; 14 B. M., 394.
   JUDGE ROBERTSON

delivered the opinion of the court :

The circuit court erred in rendering judgment for the value of the mule, without proof or without an assessment by a jury. While all allegations of fact are admitted by the defendant’s default, no allegation of an opinion or estimate of value can be deemed to be admitted; and this is the express provision of the Code.

' Although, then, the judge might, according to the Code, render judgment without a jury in the absence of any answer or other defense, yet the record should show, as it does not in this case, that he heard evidence as to the extent of damages. (Daniel vs. Judy, 14 B. Mon., 394.)

Wherefore, the judgment is reversed, and the cause remanded for further proceedings.  