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.
§ 25-1308.Judgment upon failure to answer; procedure.
Article 13: Judgments · Not amended since original codification · Last verified July 22, 2026
In one sentenceThis section lets the court, with the non-defaulting party’s assent, take an account, hear proof, or assess damages itself, refer the matter out, or send it to a jury after a default, while preserving a party’s right to demand a jury.
Full Text of § 25-1308
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.
Plain-English Summary
Not every judgment can be entered the moment a party defaults or a legal issue is decided. Sometimes the court still needs to figure out an amount — an account needs taking, a fact needs proving, or damages need assessing — before it can pronounce judgment. Section 25-1308 gives the court several ways to handle that remaining work, all requiring the assent of the party who is not in default.
With that assent, the court may take the account, hear the proof, or assess the damages itself. Alternatively, again with the same assent, the court may refer the matter to a referee, master, or commissioner, or may direct that it be ascertained or assessed by a jury. If the court orders a jury, that proceeding happens on or after the day the case is set for trial — it is not sprung on the parties ahead of the normal trial schedule.
The section also protects a party’s jury trial right in this setting. Even after a default or a ruling on an issue of law, a party who appears at the trial in person or through an attorney and demands a jury retains that right; the statute is not to be read as impairing it.
Frequently Asked Questions
What happens when a defendant defaults but the court still needs to figure out damages?
Section 25-1308 lets the court, with the assent of the non-defaulting party, take the account, hear proof, or assess damages itself, refer the matter to a referee, master, or commissioner, or direct a jury to ascertain or assess the amount.
Does the defaulting party get any say in how damages are determined?
The statute requires the assent of the party not in default before the court proceeds by any of these methods; it does not condition the procedure on the defaulting party’s agreement.
If the court orders a jury to assess damages after a default, when does that happen?
On or after the day the action is set for trial — the statute ties the jury proceeding to the case’s existing trial date rather than allowing it at any earlier time.
Does a party lose the right to a jury trial just by defaulting?
Not automatically. The statute says it shall not be construed to impair the right of a party to a jury if that party appears at the trial, in person or by attorney, and demands one.
What is the difference between a referee, master, and commissioner in this context?
Section 25-1308 lists all three as options the court may refer the accounting, proof, or damages assessment to, without distinguishing among their roles within the statute itself.
Does this section apply after every default, or only in specific situations?
It applies where taking an account, proving a fact, or assessing damages is necessary to let the court pronounce judgment, either upon a failure to answer or after a decision of an issue of law.
Source & verification. Section text and the amendment-history citation are
reproduced verbatim from the Nebraska Legislature, Revisor of Statutes, enacted by the
Nebraska Legislature. Last verified July 22, 2026. ·
Official source
Also known as: damages after default judgment nebraskaassessing damages default judgmentreferee to determine damagesjury after default judgment