Gatling v. House

• Decision Date: 31 January 1872
• Citation: 66 N.C. 374
• Court: North Carolina Supreme Court
• Parties: PARKER & GATLING v. W. O. HOUSE, et al.

66 N.C. 374

PARKER & GATLING

v.W. O. HOUSE, et al.

Supreme Court of North Carolina.

January Term, 1872.

1. A judgment by default for want of an answer, admitts that the plaintiff had a good cause of action and that he is entitled to some damages.

2. In such case, if the plaintiff's claim for damages is certain or can be rendered certain, by mere computation, there is no need of proof, as the judgment by default admits the claim--but when the measure of damages is uncertain, the assessment must be made upon proof--and the onus as to the amount is upon the plaintiff.

3. Therefore, where there was a judgment by default in a suit on a constable's bond, the plaintiff must prove that the debtors were solvent, and the amount of damage sustained by the constables' not using proper diligence in collecting the claims placed in his hands.

Parker & Gatling v. W. H. Smith, 64 N. C. 291, Warlick v. Barnett, 1 Jones, 529, cited and approved.

This was an action on a constables bond tried before Watts, Judge, at a Special Term of Halifax Superior Court.

The plaintiff declared upon a constables bond and assigned as a breach, that the officer had not used due diligence in endeavoring to collect certain claims placed in his hands. A complaint was filed setting forth the different claims placed in the hands of the officer.

The defendants failed to answer, and at the return term a judgment was entered by default and enquiry.

At the Special Term aforesaid, the plaintiff proposed to execute the enquiry, and a jury was empannelled for that purpose, he read his complaint and the receipt of the Constable, and stopped his case.

The defendant's counsel asked the Court to instruct the jury that the plaintiff was not entitled to recover, because he had failed to prove the appointment of the constable, and the execution of the bond sued on. That he had failed to prove the insolvency of the parties, or any of them, upon whom claims had been given to the officer, and that no demand had been proved.

His Honor declined to so charge, but told the jury that the plaintiff was entitled to recover the amount of his claims set forth in the complaint. The jury returned a verdict in accordance with the instructions. Judgment and appeal by the defendants.

Moore & Gatling for plaintiffs .

Batchelor for defendant .

DICK, J.

This is an action against a constable on his official bond, for a failure to perform his official duty. The default of the defendant in failing to answer, admits the execution of the bond sued on, and that the plaintiffs have good cause of action, and the only question left for determination is the amount of damages.

The C. C. P., sec. 217, makes provision for...