
    Fowlkes vs. Webber.
    1. After judgment by default, the court might well authorize an amendment of the writ enlarging the claim for damages. And it is not error that the court did not accompany such amendment with an order, that the defendant be allowed to plead to the proceeding as amended.
    2. Where á verdict was for a larger amount than the damages laid in the writ and declaration, it is held to be erroneous to enter a judgment thereupon. The plaintiff may, however, remit the excess and take a judgment for the amount claimed in thp writ and declaration.
    The plaintiff in error was sued in the Davidson circuit court, in an action of ejectment, and the damages laid in the writ at one thousand dollars.. At the September term, 1846, to wit, on the 16th day of September, a judgment by default was rendered, and a writ of inquiry awarded. After-wards at same term, to wit, on the 28th day of September, on motion of the plaintiff, leave was granted to amend his writ by making the damages two thousand dollars. At the May term, 1847, the writ of inquiry was executed and judgment rendered by the presiding judge, (Maney,) for two thousand and nine dollars and sixty eight cents. . '
    
      J. M. Lea,- for plaintiff in error.
    It will not be denied, that a judgment is erroneous and will be reversed, unless the defendant remits the excess over two thousand dollars. 6 Yerg., 332. But in such case the defendant in error must pay the costs of the writ of error. 2 Dal. 184; 3 Iredell, 349.
    It is true damages may be increased by amendment of the writ and declaration at almost any stage of the proceedings, or if judgment is rendered for too large an amount, a remitti-tur may be entered; but the question here is, can an interlocutory judgment be amended without notice to the defendant, so as to double his liability. As a necessary consequence, when damages are increased after interlocutory judgment, the pleadings .must be opened. The final is founded upon the interlo-eutory judgment, and that claims only $1000 damages, and at the time- of its rendition no more in fact was claimed. If the amendment has application to the writ or declaration— and the writ is amended — then no interlocutory judgment has in fact been rendered, and the whole proceedings are erroneous. But suppose the amendment of the writ operates as an amendment of the interlocutory judgment — and to sustain the judgment, this extraordinary length must be gone; then we contend that the pleadings should have been opened. The defendant’s liability was increased, his rights prejudiced. The admission of one cause of action was without notice applied to the admission of another cause of action, or which is the same thing, his liability doubled on the same cause of action. Authorities to this point are numerous. Amendments of declarations are only allowed after judgment by default, on condition of opening the judgment and giving time to plead. 2 Pen. 512.
    Where a verdict is found for an amount exceeding the damages claimed in the declaration, the plaintiif will not be permitted to amend his declaration by enlarging the damages, unless he abandons his verdict, pays the cost of the trial, and consents to a new trial. 3 Wend. 356.
    The court will not amend the declaration where the damages found exceed the amount claimed, unless the plaintiif consents to a new trial. . 4 Yeates 1; 1 Hall, 115.
    When a party is permitted to amend his pleadings after a verdict, a trial de novo must be allowed. 4 Yerg. 165. The reason, we think, is still stronger why he should not except under the rule be permitted to amend after an interlocutory judgment.
    An interlocutory judgment obtained on a state of facts presented in the pleadings, is made the ground work of a final judgment, obtained on a different state of facts presented by the pleadings. This is too unjust to be legal.
    
      But amendments are never ’allowed without notice where the opposite party is put in a worse situation. 2 Ten.,54. In this case the defendant was put in a worse situation, for* by the amendment his liability was increased one thousand dollars. See 1 Tidd Pr. 513,14.
    
      Reid and A. Ewing, for the defendant.
   GheeR, J.,

delivered the opinion of the court.

In this case, the defendant in error Brought his action of covenant, to the September term 1845, of the circuit court of Davidson county, against the plaintiff in error, laying the damages' in his writ, at one thousand dollars. At the September term, 1846, the defendant failing to plead, the plaintiff, on the 16th of September, took judgment by default, and an inquiry of damages was awarded.

On the 20th of September, at the same term, the plaintiff moved for leave to amend his writ, by making his damages two thousand dollars, which was granted by the court. At May term 1847, a jury was sworn to enquire of the damages, and, returned a verdict for $2009,68, upon which verdict, judgment was rendered for the damages aforesaid, and the costs.

To reverse- this judgment, the present writ of error is brought. The plaintiff in error, now insists, that the court erred in proceeding to execute the enquiry of damages, .after the writ was amended, but that the judgment by default, should have been set aside, and time to plead allowed him.

It is not denied but that the court was authorized, by the act of 1809 ch. 49, sec. 21, to permit the amendment in question, at the stage of the proceeding, in which it was done in this case; but it is argued, that as the writ was enlarged by .the amendment, it is possible that the defendant might, if he had been permitted, have put in a plea, resisting the whole demand; "which he did not choose to do, when only one thousand dollars was demanded by the writ.

We do not perceive the force of this argument. It is to be presumed, that a party who has a valid defence to an action, will not fail to put in that defence. If the plaintiff has no right to recover anything; it cannot be supposed the defendant would be willing he should recover one thousand dollars without defence, and if the plaintiff were entitled to any, the smallest damages he was entitled to his judgment by default, on the failure of the defendant to plead.

The judgment by default, would be precisely the same, whether the damages claimed were one, or two thousand dollars ; and if the plaintiff was entitled to recover any'’ thing, and, that he was, the defendant’s failure to plead proves, the fact that the amendment was made, after the judgment by default, could, by no possibility affect the/defendant injuriously. The only question for investigation was, as to the amount of damages, to which the plaintiff was entitled. By our practice, a defendant, is supposed to be in court, after the service of the writ, until the final judgment without entering his appearance ; and, as by law, the court may from time to time, amend the writ and other process on such terms, as in its discretion it may prescribe; it is incumbent on the other party, to ask for such order, as may be reasonable, or as the amendment allowed his adversary, may make necessary.

If he does not do this, and the court has exercised a sound discretion in allowing the amendment, it cannot be error, that the court has failed, to make an order, that additional pleadings may be filed, no such order being desired by the parties.

In this case, if Fowlkes had desired to plead, he would certainly have been permitted to do so, if he had produce!! a plea, with the proper affidavit. But as he failed to make such application, we are to infer, that he did not wish to plead to the action.

Indeed, he could not possibly have any defence after the amendment, which would not have been equally, a defence before that order was made. And therefore, it would have, been absurd, for the court to have set aside the judgment by default, to give the party until another term, to make a de-fence which he had failed for a year after the declaration was filed, to put in.

The verdict and judgment are for $2009 68, and damage laid in the writ is $2000, only. It was error in the court to render judgment on this verdict; and the judgment must, therefore be reversed; but as the defendant in error, proposes, to remit the excess of damage beyond the sum laid in the writ; if he shall do so, this court, proceeding to render such judgment as the circuit court should have rendered, had such remittitur been made in that court, order that he recover the said sum of $2000, and the costs of the court below; but, that the plaintiff in error recover the costs of this writ of error.  