delivered the opinion of the. Court:
This was an action of assumpsit, and the declaration contained a special count, with the common counts. Plaintiffs in error entered a motion to quash the writ, which was overruled, and without defaulting the defendants below, the court proceeded to assess the damages, and rendered judgment in favor of plaintiffs below for $294.42. It is assigned for error, that a default was not taken before the judgment in chief was rendered, and that until a default was taken, the court could not assess damages or render final judgment
There is no rule of practice better or more firmly settled, than that it is erro to assess damages or render final judgment without an issue, or upon a default. When a defendant fails to plead according to the rules of practice, the plaintiff may take a default, and have his damages assessed and a final judgment rendered. After a default is taken, the assessment should be made by the court, or, if demanded by either party, then by a jury, according to the provisions of the act of 1863. Sess. Laws, p. 47. Until a defendant fails to plead, and a default is entered, he has the right to interpose a defense, and the court cannot judicially know that he does not intend to make a defense. The object of defaulting a defendant is to ascertain whether he has a defense, and if he fails to defend the action the default is entered, and until it is set aside he is precluded from pleading, and is considered as confessing the cause of action. The court below therefore erred in assessing the damages and rendering final judgment, in this case, without defaulting the defendants, and the judgment must be reversed and the cause remanded.
Judgment reversed.