Caldwell v. Richards

5 Ky. 331

• Court: Court of Appeals of Kentucky
• Decided: July 1, 1811
• Status: Published

Opinion

y OPINION of the Court, by

Ch. J, Boyle.

.This Iwas an action of debt, for /’. 14 18s. principal, )£. 8 ISs. Iff. interest, and 6 dollars 84 cents, amounting yin the aggregate to £. 25 14?. 2 d. The action was ¡¡¡brought upon a record of a judgment of the county jfourt of Orange, in Virginia, which the plaintiff set fortli as being for £. 29 16s. to be discharged by the payment of £. 14 18,?. with interest at the rate of six ffer cent, per annum, from the 30th of May, 180©, until paid, and 6 dollars 84 cents, costs. Upon the plea of nul tiel record, the circuit court gave judgment for the plaintiff, for £, 29 18s. to be discharged by the pay-fnent of £. 14 18?. with interest at the rate of six per eeot. per annum, from foe 30th of May, 1800, until paid, and 6 dollars 84 cents, .To which judgment the defendant in the action prosecutes this writ of error. The following objections are tabea to the proceedings and judgment :

In debt on a judgment bearing intereft* if the plaintiff de-snaads only prin eipal and inter-eft accrued at the commencement of the actions he cannot have judgment for accruing in-tereft. A plaintiffin debt may have judgment for his demand, altho’ he ihews that he is entitled to mors.

1st. That there is a variance between the record set forth in the declaration, and that offered in support oi it.

2d. That there is no averment of the service of process to the action, irg the county court of Orange.

Sd. That the judgment of the circuit court is variant from, and more extensive than the demand made by the plaintiff in his declaration.

The first objection is not entitled to any weight. The record upon which the action is founded, is not made a part of the record of this case by oyer, bill of exception or demurrer to evidence, an 1 unless it had hi ~n <⅝>⅞ spread upon the record, we t a rv.t not; e . n- 1 opposed variance between it and the r. c. ;d declared upon, no more than we could in an a turn ¡g.on a b ml rmt’oe the variance between the bond aileg d in the detlanuioil and that offered in evidence, uni ss K v,\re in !>ko manner spread upon the record.

The second objection supposes the necessity of an averment, which the app'-oved forms of pleading do not require. In pleading a judgment it is not necessary to set forth the whole proceedings ; it is sufficient to state briefly, that the plaintiff impleaded the defendant in-court, in a plea of debt, and that the plaintiff, at the —— term, by the consideration of said court, recovered judgment, &c. — See 1 Sound. 92, n 2. The manner in which the judgment in this case is set forth is not very formal, but defects in form are waived by pleading to the action.

The third objection appears to be well founded. The judgment rendered by the circuit court, though it conforms to the record of the judgment set forth in the der claration, is substantially variant from the demand claimed by the plaintiff. He claims only an aggregate inter-'; esc ol £■ 8 15$: Id. being that which had accrued upo»? the £. 14 Í8s. at the time of commencing his action,? and the judgment of the court is for a continual accudj mulatíng interest upon the £. 14 18s. from the 30. u of May, 1800, until paid. The judgment in this ri sper.t is for more than the amount demanded. In no eg$#--ought the plaintiff to recover more than that which?!» clasms, although lie may Í:/ his pleadings and evidence shew himself et.uded to more. From the. manner in which the suit w ts ok,tight, there is a great d-f-ficuky in entering a correct judgment. We think h iw-ever, as the plaintiff has shewn by the judgm; at set forth in the declaration that he is entitled to more d~ the sum which he demands, he may fíroperh' tak = j '-!g-racni for that amount; that is, for £. 29 lfiv. in b. d%-charged by the payment of £. 14 18s. with ir-T-rcst thereon to the amount of £. 8 15s Id. ami d !,/:!.as 84 cents, together with his costs. This being for less than he has shewn himself entitled to, will not he to the prejudice of the defendant, and he will th.-wcinr; have no right to complain of it.

The judgment to be reversed with costs, and the ■cause remanded, with direction to enter a judgment ia conformity to the foregoing opinion,