OPINION OF THE COURT BY
FREAR, C.J.This action for false imprisonment, in which judgment was. rendered for the plaintiff in the sum of $100, conies here on defendant’s exceptions, upon only two of the points raised by which he now relies.
1. That his motion to open the default was disallowed. Aside from the question whether the trial Judge rightly denied this motion on the ground that another Judge had previously denied it, there do not appear to have been any merits in the motion.
2. That, though in' default, he was entitled to a trial or-hearing before a jury on the assessment of damages. Without: *60going into the question whether this point was raised in proper form or into the many questions argued as to the right of trial by jury in default cases, it is well settled that such right may be waived in civil cases, and that it may be waived by actions or conduct as well as expressly and in this case, if the right existed, it must be held to have been waived by the defendant’s conduct and the plaintiff’s express waiver, which was filed November 13, 1901. The defendant did not suggest a jury until well along on the second (the last) day of the hearing of the evidence on the assessment of damages, September 25, 1902. See Kearney v. Case, 12 Wall. 275; Perego v. Dodge, 163 U. S. 160; U. S. v. Harris, 106 U. S. 629 ; Walcott v. O’Connor, 163 Mass. 21; Bonewitz v. Bonewitz, 50 Oh. St. 373; Sheets v. Bray, 125 Ind. 33; Baird v. Mayor, 74 N. Y. 382; Pfister v. Dascey, 65 Cal. 403.
Kinney, McClanahan & Bigelow for plaintiff. Geo. A. Davis for defendant.The exceptions are overruled.