#### George Ungar and Max Zwiebel, Trading as Ungar & Zwiebel, Defendants in Error, v. Ignatz Feuer, Plaintiff in Error.

Gen. No. 17,202.

Judgment — default as admission of amount of damages. Under Practice Act, § 57, a defendant who, on entering his appearance, filed a written demand for a trial by jury and paid the fees, became entitled to have his damages assessed by a jury, even though he was in default. A default does not admit the amount of damages.

Error to the Municipal Court of Chicago; the Hon. William N. •Gemmill, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.

Reversed and remanded.

Opinion filed October 1, 1912.

Charles Wolff, for plaintiff in error.

Elbert C. Ferguson, for defendants in error.

*205Mr. Justice Barnes

delivered the opinion of the court.

Plaintiff in error was sued for the price of goods sold and delivered. His amended affidavit of merits or defense having been stricken from the files, default was taken for want of an affidavit of merits, and the court, without a jury, assessed the damages upon the plaintiff’s affidavit of clainr..

At the time of entering his appearance plaintiff in error filed a demand in writing for a trial by jury, and paid the necessary fees therefor. The default did not-admit the amount of damages. Wanack v. People, 187 Ill. 116; C. & St. L. Ry. Co. v. Holbrook, 72 Ill. 419; Cook v. Skelton, 20 Ill. 107. Under Section 57 of the Practice Act he was entitled, after such demand and payment of fees, to have the damages assessed by a jury. Pinkel v. Domestic Sewing Machine Co., 89 Ill. 277; Electric Co. v. Manf. Co., 111 Ill. 309; Loellke v. Grant, 120 Ill. App. 74.

Whether or not we may take judicial notice that such section is made a part of the rules of the Municipal Court, we may so regard it inasmuch as it is assumed and treated as such by both parties in their briefs. Therefore, for failure to comply with the imperative requirements of the statute as aforesaid, the judgment will be reversed and the cause remanded.

Reversed and remanded.