Mason v. Reynolds ( 1875 )

Per Curiam:

This was assumpsit by defendant in error, against plaintiff in error and others, upon several promissory notes. The plaintiff in error appeared and demurred to the declaration, and defendant in error joined. Subsequently the court overruled the demurrer, and without any notice of assessment of damages, proceeded immediately to assess damages and enter final judgment. Conceding for the present purpose, but not deciding, that the case was not a proper one for allowing the plaintiff in error to plead over (Tefft v. McNoah, 9 Mich., 201), the court could go no further, on overruling the demurrer, than to award judgment interlocutory. It was not regular to give final judgment in the first instance for a given sum in damages. — 1 Burrill’s Prac., 250; 2 Tidd, 798.

The course was, if the case was not proper for pleading-over, to adjudge that the demurrer be overruled, and that the plaintiff below ought to recover his damages, leaving the amount to be subsequently ascertained, and ordering it to be referred to the clerk to “examine, ascertain and report what sum the plaintiff ought to recover for his damages.”— §§ 6060, 6061, 6062, C. L. And no assessment could be regularly made without notice. — § 6063, C. L.

The defendants below were entitled to be heard upon the assessment, after having appeared. — 1 Burrill’s Prac., 873, 374.

The judgment and assessment must be reversed, with costs, and the cause remanded for further proceedings.

The other Justices concurred.