Parker Gatling v. . W. O. House

DicK, J. This is an action against a constable on his offi--cial bond, for a failure to perform his official duty. The default of the defendant in failing to answer, admits the execution of the bond sued on, and that the plaintiffs have good? cause of action, and' the only question left for determination is-the amount of damages. The C. C. P., sec. 217, makes provision for determining the amount of a judgment by default. 1- In any (action arising on contract for the recovery of money only, the clerk ascertains the amount which the plaintiff is entitled to recover, in the manner prescribed in saicB. section. 2. In other actions the Judge before whom an action is-pending, may upon proofs, ascertain the damages, or he may order a reference for that purpose, or have the damages assess- • ed by a jury. The judgment by default in this case admits that the plaintiffs are entitled to recover something, but in all cases of' judgment for the want of an answer, where the complaint is not sworn to, the amount must be ascertained upon proofs,, except where there is an instrument for the payment of money only. The breach ot th6 official bond assigned in the complaint,. *376 is, that the defendant did not use due diligence in collecting claims put into his hands as an officer. The defendant by failing to answer, admits this allegation, but does not admit the amount of damages, for this is the •question to be determined upon proofs. The plaintiffs cannot reasonably insist, that their unsworn statement should fix the amount of damages, when the injustice of such a proposition .is so apparent, and the law is so positive to the contrary. The plaintiffs must show their debtors were solvent, and ■the amonnt of damages which they sustained by the defendant not using proper diligence to collect their claims. If ■the debtors were insolvent the law did not require diligence on the part of the defendant, as it would have availed nothing. State on relation, Warlick v. Barnett, 1 Jones 539, and cases cited. The rules of law as to proceedings on a writ of enquiry are stated in Parker & Gatling v. Smith, 64 N. C., 291. There was error in the ruling oí His Honor. This will be ■certified that proper proeedings may be had to determine the ■amount of damages. J udgm en t reversed. Pbb Cuexam.