
    HARPER v. ASHTABULA COUNTY.
    Error — signing the records — assessment of damages — small errors.
    The omission of the presiding judge to sign the record, the want of form in the record, or of a bill of particulars, are too small matters to be noticed on error.
    If the defendant has been defaulted for not answering in court, the damages may be thereon assessed, by order of the court.
    The court may assess the damages on a default without a jury — the record does not show the particular facts proven, and if it show the plaintiff has sustained damages to $120, judgment may follow.
    Error. The county brought assumpsit against Harper in the Common Pleas for money had and received. A declaration was filed the first vacation after the writ. No rule for plea was entered, but at the third term the defendant was called and defaulted, and it being shown and proven that the plaintiffs have sustained damages in the premises in the sum of $120, &c., therefore, there was judgment for that sum and costs.
    Harper, in person, assigned the following errors :
    1. That the record is not signed by the president judge or the presiding associate judge.
    2. The record is not such as is required by law.
    3. That no bills of particulars were exhibited to the court, or entered of record.
    709] *4. No issue was joined, and it does not appear what facts were tried by the court.
    5. No jury was called to assess the damages.
    6. No damages were assessed, and it does not appear on what the court grounded its judgment.
    
      P. Hitchcock contra.
   WRIGHT, J.

To the three first causes assigned for error, it is sufficient to apply the maxim, de minimis lex non curat.

The fourth and fifth causes I will consider together. There was a default regularly taken for the non appearance of the defendant at the third term, and the defendant, who now complains, had omitted to plead or tender an issue. In cases of default, the court is by law expressly required to assess the damages, unless either party shall require a jury: (29 O. L. 73). In this case neither party-did require a jury, and the court was in the performance of its legal functions in assessing the damages. That the record does not show what particular facts were tried, is no objection. The facts very seldom form a part of the record. Upon non assumpsit, for instance, the apparent issue contests the promise, yet under it, payment, accord, a release, &c., may in fact be proven — and when they are proven, they form no part of the record.

6. From the record it appears that “if was shown and proven that the plaintiffs have sustained damages in the premises in the sum of $120.” This seems to lay a foundation for a judgment; if the objection be the omission to say it was shown “ to the court,” it is answered by the inquiry, to whom else could a fact in court be shown, so as to place it on the record? Admit the entries untechnieal, yet they are substantially good.

The judgment is affirmed, with costs.  