delivered the opinion of the court.
James M. Prewitt, March 17, 1887, filed a complaint for $1500 damages for breach of warranty in the sale of two hundred and forty acres of land, one hundred and sixty acres of which, being incumbered, was lost to the grantee, appellee. April 16, 1887, motion for default and judgment by plaintiff was allowed. April 19, 1887, at chambers, judgment was rendered in favor of plaintiff and against defendants for $1925 and costs. Complaint is made by appellant that the summons does not first state the general nature of the action, etc. This may be conceded; but a defendant, having been personally served with summons, and also copy of complaint, and not having appeared and questioned it, and after judgment making no objections, but having appealed and made his objection for the first time in this court, is rather late and entitled to little consideration. We refuse, therefore, to consider this question.
The objection is made that in this action assessment of damages for breach of warranty — the action of the court in allowing judgment for the amount claimed on default — was improper, and we are inclined to agree with this view. Sections 204 and 289 of the Code seem to require that in all actions for the assessment of damages the intervention of a jury must be had, save where a long account may authorize a referee, etc. This statute is mandatory, and we are satis*598fied that where the amount of damages is not fixed, agreed upon, or in some way liquidated, a jury must be called, unless expressly waived. Contention is made that under the provisions for setting aside judgments irregularly obtained, it was the duty of appellant to have called the attention of the court below to the irregularity and had it corrected there. There is great force in this suggestion, and we would like to agree to it; for a party having calmly slept on an error in the court below, and in no way given such court an opportunity to correct it, comes here with poor grace.
We do not feel that appellant is entitled, for these reasons, to any relief; but, unfortunately, in our judgment, the mandatory provisions of the Code were disregarded, and the matter should have been referred to a jury to assess the damages. The judgment will be reversed and remanded to the court below, solely for the purpose of having a jury assess the damages, and for no other. There can be no defense or trial on the merits; all that is “too late.” But the question of the amount of damages to which plaintiff is entitled must be referred to and ascertained by a jury; and -for that purpose alone the judgment is reversed and the cause returned to the court below, in accordance with this opinion. The costs, including those in this court, will follow the judgment below, when it is thus ascertained.
Jones, C. J., and Nash, J., concurred.
Note by Repoetep.. — Mr. Justice Nash, also announced that findings of fact and a fuller review of the ease would be filed by him at a later date.