O'Donnell v. Hecker

McAdam, C. J. The action is for injuries received by reason of defendants’ negligence. Upon the trial the complaint was dismissed. The plaintiff appealed and a new trial was ordered by the general term. The defendants thereupon.ap [385] pealed to the common pleas, giving the usual stipulation for judgment absolute. The common pleas affirmed the order and rendered judgment absolute in favor of the plaintiff. The plaintiff now applies for an order on the remittitur, and asks that it be settled according to the practice, whatever it may be. The damages, being unliquidated, must be assessed by a jury at the trial term of the court In casé of judgment by default in an. action for personal injuries, the damages must be ascertained by means of a “ writ of inquiry” (Code, sec. 1215), but this does not require that the writ shall be executed by the sheriff, for it may be executed by the judge at circuit, without the presence of the sheriff (Ellsworih agt. Thompson, 13 Wend., 658; Tillotson agt. Cheat-ham, 2 Johns., 107; Dillaye agt. Hart, 8 Abb. Pr., 394; Peck agt. Corning, 2 How. Pr., 84; Cazneau agt. Pryant, 6 Duer, 668; S. C., 4 Abb. Pr., 402; Hays agt. Berryman, 6 Bosw., 679; George agt. Fisk, 3 Robt, 710). In the present instance, an issue of fact was joined, which required trial at the circuit, and the provisions of the Code (secs. 1214, 1215) as to judgments by default for want of an answer do not apply. The general term of the city court ordered a new'trial to be had at the trial term. This order has been affirmed by the common pleas, and still has legal effect, except that the “ judgment absolute ” awarded by the common pleas on the defendant’s stipulation leaves the traversable allegations of the complaint admitted on the record. This is the legal consequence of the order for judgment absolute (Thompson agt. Lumley, 7 Daly, 74), so that the trial judge in form directs judgment on the pleadings, and orders the jury which he empanels to assess the damages (Code, sec. 1183). The proceedings have been remanded to this court (Code, sec. 3194), that it may complete the trial, which the dismissal of the complaint cut short, and the assessment in this case should, as in Thompson agt. Lumley (supra), be had at the trial term. This is the usual practice on judgments absolute, where the damages [386] are unliquidated and an assessment becomes necessary to carry tbe judgment of tbe appellate court into effect. Sections 1214, 1215 of the Oode, as .before remarked, apply only to cases where tbe “plaintiff” is required to apply to tbe court for judgment as'“ by default ” for want of an answer (2 Tillinghast & Sherman’s Pr., 250-261), and even in those cases tbe “writ of inquiry ” may be executed (if so directed) at trial term. Tbe order submitted has been settled in accordance with these views.