Pittman v. Colbert , 120 Ga. 341 ( 1904 )

Cobb, J.

1. Where a judgment by default is rendered in a case in which the damages are not liquidated, the defendant is thereby concluded as to the truth of all the material allegations of the petition, save as to the amount of the damages. The defendant may in such a case, notwithstanding the judgment by default, contest .before the jury the amount .of the damages, and to this end may not only rigidly cross-examine the witnesses for the plaintiff, but also introduce evidence in his own behalf. Civil Code, § 5073; O'Con-nor v. Srucker, 117 Ga. 451 (2). See also Lenney v. Finley, 118 Ga. 427 (2).

2. The evidence upon one or more of the vital and controlling issues being directly conflicting, the discretion of the judge, exercised in granting an interlocutory injunction until these issues can be determined by a jury, will not be controlled. Judgment affirmed.

All the Justices concur.