Russell v. Hackett
| Decision Date | 05 May 1950 |
| Parties | RUSSELL v. HACKETT et al. 26 Beeler 381, 190 Tenn. 381, 230 S.W.2d 191 |
| Court | Tennessee Supreme Court |
Solon Fitzpatrick, Carthage, for plaintiff in error.
Clint Beasley, Carthage, for defendant in error.
Plaintiff, Harry Russell, sued defendants, Edgar Hackett and C. B. Taylor, for damages claimed to have been caused to his motor truck by their negligence. Hackett appeared in court and defended the suit, but Taylor, though called, did not appear in court, and when the case was called for trial, judgment by default was entered against Taylor on June 28, 1948. Thereafter, on the same day, plaintiff Russell and defendant Hackett waived the jury trial which had been demanded by plaintiff in his declaration.
The case was then heard before the trial judge without a jury, who found the issue in favor of defendant Hackett and dismissed the action as to him, but rendered final judgment for $400 and costs in favor of plaintiff Russell and against defendant Taylor. Taylor appealed to the Court of Appeals and that Court affirmed the judgment of the lower court. Taylor has filed petition for writ of certiorari to this Court.
Taylor insists, in that the action was for unliquidated damages, the trial judge should have impaneled a jury to assess the damages, and his failure to do so constitutes reversible error. Taylor relies upon sections 8804 and 8805 of Williams' Code, which are as follows:
8804. 'Judgment by default.--If the defendant fail to appear and defend at the time prescribed by law, judgment by default may be taken against him.'
8805. 'Final or interlocutory.--In such case, the judgment is final if the amount of the plaintiff's claim can be ascertained by simple calculation from the papers; when the amount cannot be thus readily ascertained, the damages will be assessed by a jury impaneled at the same term for the purpose.'
In Taylor v. Sledge, Wells & Co., 108 Tenn. 719, 69 S.W. 266, the plaintiffs sued for unliquidated damages and in their declaration demanded a jury. Defendant having failed to appear and plead, judgment by default was entered against him, and a writ of inquiry was awarded to ascertain the damages. At the next term the plaintiffs waived the jury, and the trial judge heard evidence and found the amount of damages. In that case this Court held that the plaintiffs might waive the jury, defendant not being present and objecting; that it was not error for the trial judge to find the amount of damages, and said, 108 Tenn. at pages 721-722, 69 S.W. at page 267: ...
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Poole v. Bank
...decisions illustrate that waiver of the right to jury trial in civil cases is not wholly prohibited. See, e.g., Russell v. Hackett, 190 Tenn. 381, 230 S.W.2d 191, 192 (1950); E. Tenn., V. & G.R. Co. v. Martin, 85 Tenn. 134, 2 S.W. 381, 382 (1886); Nagarajan v. Terry, 151 S.W.3d 166, 176 (Te......
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Nagarajan v. Terry
...as to whom issues have been joined." Tenn. R. Civ. P. 38.05. This waiver may be explicit or by implication. Russell v. Hackett, 190 Tenn. 381, 383, 230 S.W.2d 191, 192 (1950); Beal v. Doe, 987 S.W.2d 41, 47 (Tenn.Ct.App.1998); Davis v. Ballard, 946 S.W.2d 816, 817 (Tenn.Ct.App.1996). Courts......
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Byrd and Associates, PLC v. Siliski, No. M2008-00066-COA-R3-CV (Tenn. App. 8/19/2009)
...who demanded a jury may be deemed to have implicitly waived the right to a jury trial by their acts or omissions. Russell v. Hackett, 230 S.W.2d 191, 192 (Tenn. 1950); Beal v. Doe, 987 S.W.2d 41, 47 (Tenn. Ct. App. 1998); Davis v. Ballard, 946 S.W.2d 816, 817 (Tenn. Ct. App. 1996). "Courts,......
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Isaac v. McMorris, 55212
...v. Leifer, 144 Ga.App. 36, 240 S.E.2d 584 (1977); Heidler v. Heidler, 42 N.C.App. 481, 256 S.E.2d 833 (1979); Russell v. Hackett, 190 Tenn. 381, 230 S.W.2d 191, (1950); White Motor Co. v. Loden, 373 S.W.2d 863 (Tex.Civ.App.1964). See generally 90 A.L.R.2d 1162 (1963). The purpose of these s......