
    Russell v. Hackett et al.
    
    (Nashville,
    December Term, 1949.)
    Opinion filed May 5, 1950.
    SoloN Fitzpateick, of Carthage, for plaintiff in error.
    CliNT Beasley, of Carthage, for defendant in error.
   Mr- Justice Prewitt

delivered the opinion of the Court.

Plaintiff, Harry Russell, sued defendants, Edgar Hackett and C. B. Taylor, for damages claimed to have been caused to his motor truck by their negligence. Hackett appeared in court and defended the suit, but Taylor, though called, did not appear in court, and when the case was called for trial, judgment by default was entered against Taylor on June 28, 1948. Thereafter, on the same' day, plaintiff Russell and defendant Hackett waived the jury trial which had been demanded by plaintiff in his declaration.

The case was then heard before the trial judge without a jury, who found the issue in favor of defendant Hackett and dismissed the action as to him, but rendered final judgment for $400 and costs in favor of plaintiff Russell and against defendant Taylor. Taylor appealed to the Court of Appeals and that Court affirmed the judgment of the lower court. Taylor has filed petition for writ of certiorari to this Court.

Taylor insists, in that the action ivas for unliquidated damages, the trial judge should have impaneled a jury to assess the damages, and his failure to do so constitutes reversible error. Taylor relies upon Sections 8804 and 8805 of Williams ’ Code, which are as follows:

8804. “Judgment by default. — If the defendant fail to appear and defend at the time prescribed by law, judgment by default may be taken against him.”
8805. “Pinal or interlocutory. — In such case, the judgment is final if the amount of the plaintiff’s claim can be ascertained by simple calculation from the papers; when the amount cannot be thus readily ascertained, tbe damages will be assessed by a jury impaneled at tbe same term for tbe purpose.”

In Taylor v. Sledge, Wells & Co., 108 Tenn. 719, 69 S. W. 266, tbe plaintiffs sued for unliquidated damages and in tbeir declaration demanded a jury. Defendant having failed to appear and plead, judgment by default was entered against him, and a writ of inquiry was awarded to ascertain tbe damages. At tbe next term the plaintiffs waived tbe jury, and tbe trial judge beard evidence and found tbe amount of damages. In that case this Court held that tbe plaintiffs might waive tbe jury, defendant not being present and objecting; that it was not error for tbe trial judge to find the amount of damages, and said, 108 Tenn. at pages 721-722, 69 S. W. at page 267: “Tbe jury having been once called for by tbe plaintiff, be could not dispense with such jury over tbe objection of defendant. But either party waives bis right to a jury by failing to insist upon one at tbe proper time. East Tennessee, V. & G. Ry. Co. v. Martin, 85 Tenn., 134-138, 2 S. W. 381; Coulter v. Wood Sewing Machine Co., 3 Lea, 115. The statute provides that tbe jury, if demanded, may subsequently be waived by tbe consent of both parties, but this consent may be express or implied. Cases supra. Louisville & N. R. Co. v. Trent, 16 Lea, 419-422. Such has been the bolding in other states. O’Flynn v. Holmes, 8 Mich. 95, 97; Huppenbauer v. Durlin, 26 La. Ann. 540; White v. Moris, 107 N. C. 92, 101, 12 S. E. 80; Preston v. Wright, 60 Iowa, 351, 353, 14 N. W. 352.”

The Sledge case is referred to with approval in tbe later case of Hunter v. Sheppard et al., 187 Tenn. 99, 213 S. W. (2d) 19.

Taylor having been properly brought before the trial court by service of process, did not appear and defend the suit. Therefore, his consent to the waiving of the jury was implied.

We find no merit in the petition for writ of certiorari and it is denied.

All concur.  