
    Isaiah Franks et al. v. J. W. Martin and Wife.
    Judgment — Admission of Vaue or Amount of Damages.
    Under § 155, Civ. Code Prac., allegations of value or amount of damages should not he taken as true, hut must he submitted to a jury.
    APPEAL PROM SHELBY CIRCUIT COURT.
    October 25, 1873.
   Opinion by

Judge Hardin :

If the averments of the first paragraph of the answer can be regarded as more than a plea of partial failure of consideration, and as constituting a counterclaim, and be taken as time, because not controverted under Sec. 155, Civil Code of Practice, yet, as under the same section “allegations of value or amount of damage shall not be so considered as tru'e,” and the nature of the supposed counterclaim is such that the court could not have given judgment for it without first ordering an inquiry by a jury, which was not sought by the appellants, the court could not have done otherwise than to overrule the motion of the appellants for judgment in their favor, after the verdict and judgment were rendered against them.

Roberts, for appellants.

Harwood, for appellees.

But the record sufficiently shows that on the trial the counterclaim was treated as controverted, and the court, at the defendants’ instance, instructed the jury on that assumption.

No error in the ruling of the court, as to the admissibility of evidence, was assigned as a ground for a new trial; and we can not see that the verdict is not sustained by the evidence.

The plaintiffs asked no instructions', and no- exceptions were taken by the defendants to the refusal of the court to give any asked by them.

Wherefore the judgment is affirmed.  