KENUM v. HENDERSON

KENUM v. HENDERSON. 1. In an appeal case, where the judgment is for a loss sum than twenty dollars, it is error to render a final judgment l>y default, unless the debt is ascertained by a writing. In other cases, the facts must bo examined by the court, and its judg, ment given on them. Whit of error to the Circuit Court of Benton county. This suit was commenced by Henderson against Kenum, in a justice’s court, and Kenum appealed to the circuit court. No declaration or statement is on file, nor is there any matter disclosed in the transcript to induce a presumption that the suit is founded on a writing ascertaining the amount of the debt. A judgment by default was taken, and a writ of inquiry awarded at one term; but this was afterwards set aside,and a judgment final was entered, as on default, for 18 61-100 dollars, besides costs ; but it does not appear that the facts, upon which the defendant was charged, were passed on by the court. This judgment is now assigned as error. S. F. Rice, for the plaintiff in error. W. B. Martin, contra. [MAJORITY — COLDTHWAITE, J.] COLDTHWAITE, J. There is nothing shown here by which the judgment can be sustained. It is true, the judgment is for a less sum than 20 dollars, and, therefore, no pleadings were necessary ; but a court is not authorized, in such a case, to give a final judgment without considering the facts any otherwise than it would be in a suit for a greater sum. If the debt, is ascertained by a writing, the judgment by default, whatever is the sum, may be final; but, when it is not, the damages must be ascertained by a jury, if for more than 20 dol lars, and by the court, if for a less amount. Let the judgment be reversed, and the cause remanded.