Bullock and wife had judgment against Langdon below by default. Langdon filed an affidavit and moved to set aside the default. Motion overruled. Langdon excepted, and took Ms appeal.
Several errors are assigned, which will be noticed in their order.
1. The complaint does not show in what respect the wife was the meritorious cause of action. This, was, perhaps, a good objection at common law, but not under our statute.
Without noticing the time ■ and manner of making this objection, it is sufficient to say that the party might have amended below by striking out the name of the wife. 2 R. S. p. 48, s. 99. The amendment would, if necessary, be regarded as made here. The State v. Cross, 6 Ind. R. 387.
2. It is urged that the Court erred in entering a default against the defendant on the first calling of the cause. He should, it is said, have been first ruled to plead, and then if he failed to comply, he might be defaulted. That is the course with parties who appear at the first calling; but if on such calling the defendant is not present, no rule can be taken against him, and a default is to be taken in the first instance. This is clearly the scope of the statute. 2 R. S. p. 42, ss. 68, 69.
3. It is urged that, as the suit was for the tortious taking of personal property, the assessment of damages by the Court was erroneous. That was the common-law doctrine, but the rule is changed by statute. By failing to appear at the trial, a jury is waived. 2 R. S. p. 115, s. 340.
4. The fourth error assigned, is the refusal of the Court to set aside the judgment by default, upon affidavit filed to the effect that he had no recollection of *343the service of summons,’and hence did not appear. We do not think the Court abused its discretion in refusing to set aside tbe default for that cause. 2 R. S. pp. 48, 49, s. 99.
J. P. Usher, for tbe appellant. Per Curiam.Tbe judgment is affirmed with costs.