delivered the opinion of the court.
In this case a suit was instituted by the state for the use of one Irvan Hinson against W. M. Lee, sheriff of Simpson county, and the United State Fidelity & Guaranty Company, surety on the official bond of the said sheriff. The declaration avers that the sheriff, as jailer, had plaintiff in his possession as a prisoner, and negligently failed to provide plaintiff with the accommodations, conveniences, and comforts required by section *54687 of the Code; that he was illegally and negligently placed in the same cell with a negro lunatic, and that the said lunatic assaulted him and painfully and seriously wounded him. Service was had on the surety, hut the summons was returned “not found” as to the principal, the sheriff. Neither the sheriff nor the surety pleaded to the declaration at the time required hy statute, and a judgment hy default was taken against the appellant, as surety, and a writ of inquiry awarded to assess damages, whereupon the appellant entered an appearance, and asked the court to set aside and vacate the default judgment against it. This motion was overruled, the trial judge stating:
“As to this question of default, there is no douht hut that the court will have to overrule the motion to set aside the default. It is not a question in which. the court can exercise any kind of discretion.”
Thereupon the hearing of the writ of inquiry to assess damages was continued until the next term of the court. At the next term a similar motion was again filed hy the surety company asking the court to set aside the judgment hy default, because it was sued jointly as surety with said Lee as principal, seeking & recovery for wrongs and injuries amounting to a breach of the official bond of said Lee, and because no valid judgment could he entered against it alone without dismissing as to said Lee. Upon motion of plaintiff this- motion was stricken from the files. At the same term the sheriff appeared, and entered his appearance and asked that he he permitted to defend the suit against him. This too was denied. The question of damages was then submitted to the jury on evidence of both sides, and the jury returned a verdict for the plaintiff assessing his damages at two hundred and fifty dollars. From this judgment this appeal was prosecuted.
We have not seen fit to go into the numerous motions and counter motions made and ruled on in the trial of *6this case, hut will content themselves with the foregoing statement, which we think sufficiently embraces the essential facts necessary to give point to our views of this appeal.
Briefly summarized, the sheriff and the surety on his official bond were jointyl sued; service was had on the surety, but the principal was not found; a judgment by default was taken against the surety 'at the return term; the surety appeared before the expiration of the return term and sought to have the judgment by default set aside, which the court denied. A writ of inquiry was awarded and the case continued. At the next term the motion to set aside was renewed, which was supported by the appearance of the sheriff ready to defend on the issue of liability, and the court again refused to set aside the judgment by default, and therefore the question of the liability of the sheriff was never tried by a jury. The jury considered the amount of damages alone for an admitted wrong inflicted upon the plaintiff by the negligence of the sheriff.
When the learned trial judge overruled the first motion to vacate the default judgment, he did so because he did not think that he was empowered to do so. In other words, the judge thought, and so stated, that he was entirely without discretion in the premises. Thus, in effect, saying that no matter what reasons could be or' were given for a trial on the facts, he, the judge, acting in his judicial capacity, was powerless to set asidé the default judgment. In this the judge was entirely mistaken. Whether he would have set aside the judgment if he had possessed the proper view of his power in the premises, we can only conjecture. We think, however, that his statement indicates that he would have acted differently.
Many facts were brought to the attention of the court, which we think should have influenced the judge to have both issues tried on the facts. I appears that the surety had a regularly retained attorney to look after *7its interests in this state, and that this attorney .was ill when the trial term was held in Simpson county, and it seems to us, viewing the record ás a completed whole, that injustice was done to the surety company because it was not permitted to try its case, as a whole, and on its merits. An inspection of the record convinces us that a fair and impartial jury might have returned a different verdict, if it was permitted to try the whole case on its merits. The object of all courts should be to try all oases on their merits, if it is possible to do so without violence to the rules fixed by law for theirguidance.
We have not discussed the several questions presented by the record because we deem it unnecessary at this time.
Reversed and remanded