Bevin v. Goodman , 1 Minor 90 ( 1822 )

JUDGE Crenshaw

delivered the opinion of the Court.

Goodman recovered a judgment by default before a Justice' the Peace, against Bevin for $4160; from which he appealed to the Circuit Court.. Goodman filed his statement in na^ure °f a declaration, and Bevin failing to appear or plead, final judgment by default was-again rendered against him,, from which he prosecutes a writ of Error, and here assigns as Error — “ That no issue was joined or tried by a “ Jury as required by Statute.”

The Statute alluded to (Laws Alaba. p. 511, sect. 3) enacts that “ when the sum claimed exceeds twenty, dollars, the " said Court shall.try such appeal de novo, as any other cause “ in said Courts is tried at the first term, on an issue to be “ made up at or béfore the trial.”

An issue within the meaning of the Statute is to be formed by the plaintiff’s statement, in the nature of a declaration; and the defendant’s plea or other statement of matter- of de-fence, by which, as in other cases, a question of fact is made for the determination of the Jury, or of law for the determination of the Court. I do not conceive that the Statute requires that on every appeal when the sum claimed exceeds twenty dollars, an issue must be tried by a Jury ; or that if the defendant refuses or fails to plead, and consequently no issue can be formed, that the plaintiff is not to have judgment, as in other cases, when his statement of his cause of action is not denied. If the action be founded on a writing ascertaining the sum sued for, the judgment by default is final, and. the intervention of a Jury is not required by the Statute.

In this opinion the Court are unanimous.

Let the judgment be affirmed.