Stepp v. Stephenson

HoldeN, P. J., delivered the opinion of the court. The appellee, Mrs. Alice Stephenson, sued the appellant, T. M. Stepp, for actual damages, and the statutory penalty, for the cutting and removing of about 76 pine trees standing on her land. Personal service was had upon the appellant, Stepp, hut he failed to appear and defend the suit; whereupon judgment by default was taken against him for the sum of two hundred fifty dollars as actual damages and one thousand one hundred forty dollars as the statutory penalty for cutting-and removing the trees. This judgment, by default, for a total of one thousand three hundred ninety dollars, was rendered by the court upon the pleadings instead of awarding a writ of inquiry so that a jury might determine the amount of damages to be assessed against the defendant. The appellant complains here that the court erred in rendering the judgment without a writ of inquiry. We think the position of appellant is well taken. It is not a case where a judgment may be rendered for an amount certain as shown by the pleadings, as provided in section 599, Hemingway’s Code. The actual damages on account of the cutting of the trees was a matter that required proof and an assessment by a jury under a writ of inquiry before the default judgment in favor of the *471 plaintiff for the amount of actual damages could he rendered. For the error committed by the lower court, the judgement will be reversed and the case remanded. Reversed and remanded.