Bozeman v. Dillard

The petition is for mandamus to the judge of the law and equity court of Franklin county, to vacate an order made on motion as to assessment of damages by the court after default when a jury was demanded.

The provisions of section 7881, Code of 1923, are specific, in that either party may have the damages assessed by a jury. The statute merely declares the rule established by this court concerning the right to a jury when demanded, and the same may not be waived without the consent of the adverse party. Prudential Casualty Co. v. Kerr, 202 Ala. 259, 80 So. 97; Ex parte Florida Nursery Trading Co., 201 Ala. 97, 77 So. 391; Hartford Fire Ins. Co. v. Bannister, 201 Ala. 681, 79 So. 253; Liverpool, etc., Ins. Co. v. Lowe, 208 Ala. 12, 93 So. 765.

The judgment by default against defendant was interlocutory until there was a proper assessment of the damages by a jury on execution of writ of inquiry. The 30-day statute has application to a valid judgment. Code 1923, § 6670. The court did not lose control over the judgment by default to restore the case to the docket for the execution of the writ of inquiry and a proper assessment of the damages by a jury as demanded by the plaintiff. Moreover, there was no motion made or application by petitioner to the court to set aside the order complained of. Ex parte Edwards, 123 Ala. 102,26 So. 643; Hill v. Tarver, 130 Ala. 592, 30 So. 499; Moseley v. Collins, 133 Ala. 326, 32 So. 131.

The writ is denied.

ANDERSON, C. J., and SOMERVILLE and BOULDIN, JJ., concur.