§ 25-1308 — Judgment upon failure to answer; procedure

If the taking of an account, or the proof of a fact, or the assessment of damages, be necessary to enable the court to pronounce judgment upon a failure to answer, or after a decision of an issue of law, the court may, with the assent of the party not in default, take the account, hear the proof, or assess the damages; or may, with the like assent, refer the same to a referee, master, or commissioner, or may direct the same to be ascertained or assessed by a jury. If a jury be ordered, it shall be on or after the day on which the action is set for trial. This section shall not be construed to impair the right of a party to a jury if he appear at the trial by himself or attorney, and demand the same.

Legislative History

Source: R.S.1867, Code § 432, p. 466; R.S.1913, § 8001; C.S.1922, § 8942; C.S.1929, § 20-1308; R.S.1943, § 25-1308. Annotations: Modification of child custody and support in a dissolution action is a special proceeding, and thus, the statute governing the procedure for a default judgment in a civil action is not controlling. Fitzgerald v. Fitzgerald, 286 Neb. 96, 835 N.W.2d 44 (2013). This section applies where it is necessary to make proof of allegations of value and amount of damage, and did not apply to creditor's bill. Danbom v. Danbom, 132 Neb. 858, 273 N.W. 502 (1937). Where only issue presented by answer was one of law, court properly proceeded under this section. Bankers' Reserve Life Assn. v. Finn, 64 Neb. 105, 89 N.W. 672 (1902).