
    The Masonic Educational Association of Chattanooga v. Henry J. Cook.
    Judgment. By default, when final. Jury. If the defendant in an action fail to appear and defend, within the time prescribed by law, judgment by default may be rendered against him. If the action is founded upon a bond, bill of exchange, promissory note, or a liquidated account signed by the parties, so the amount can be ascertained by a simple calculation upon the papers filed, the judgment may be final. In all other cases, the intervention of a jury is necessary to ascertain the amount due.
    EROM HAMILTON.
    The plaintiff in error ivas sued in debt, in the Law Court of Chattanooga, on an open account. At the March Term, 1859, G-aut, J., presiding, judgment final, by default, tras rendered against him, for $466.92 and costs. He appealed in error.
    J. L. Hopkins, for the plaintiff in error.
    
      BRábson & Lyle, for the defendant in error.
   Weight, J.,

delivered the opinion of the Court.

This is an action of debt. The declaration, which was filed at the return term of the writ, seeks to recover a specific sum, namely, four hundred and sixty-six dollars and ninety-two cents. The cause of action is stated to be for work and labor done, goods sold and delivered, and money paid, laid out and expended.

At the next succeeding term of the Court, after the filing of the declaration, the defendant having failed to make any defence, judgment final, by default, was taken in favor of the plaintiff for the amount demanded in the declaration, with costs, without the intervention of a jury.

This judgment, we think, is erroneous. In section 2951 of the Code, it is provided, that if the defendant fail to appear and defend at the time prescribed by law, judgment by default may be taken against him. And in section 2952, in such case, the judgment is final, if the amount of the plaintiff’s claim can be ascertained by simple calculation from the papei'S; when the amount cannot thus be readily ascertained, the damages will be assessed by a jury impanelled at the same term for the purpose.

The term papers here, refers to the writing or other evidence, upon which the action is founded, and not to the pleadings in the cause. It was doubtless intended to apply to suits instituted upon bonds, bills of exchange, promissory notes, liquidated and signed accounts, and the like, from which the amount due the plaintiff could be readily ascertained by simple calculation. In all other cases, the intervention of a jury is necessary to ascertain the sum due the plaintiff.

The use of the word damages might seem to imply, that in actions of debt, the jury need only assess the interest upon the claim. But we think it apparent, from these and other provisions in the Code, that a more comprehensive meaning was intended by the Legislature, and that in all such cases, where a jury are required to be impanelled, they should pass upon the measure of the recovery to be had by the plaintiff, without regard to the form of the action. Code section 2746.

The judgment of the Law Court of Chattanooga will be reversed, and the cause remanded to that Court, to the end, that a jury may be impanelled to ascertain the amount due the plaintiff.  