Durie v. Anderson

16 S.W. 345, 4 Willson 432

• Court: Court of Appeals of Texas
• Decided: May 20, 1891
• Docket: No. 7155
• Status: Published

Opinion

Opinion by

Davidson, J.

§ 250. Judgment by default; if excessive by reason of erroneous calculation, will be properly modified on appeal. Defendant in error sued plaintiff in error on January 28, 1890, upon a promissory note of date July 20, 1888, which became due on November 1, 1889. The note was for $262.86, and bore interest at the rate of twelve per cent, per annum from maturity, as well as ten per cent, as attorney’s fees in case the note was collected by virtue of legal proceedings. On July 9, 1890, judgment by default was rendered against the plaintiffs in error for the sum of $357.17, with interest thereon from that date at twelve per cent, per annum. Plaintiffs in error assign as error that the judgment is excessive, and that said judgment at its rendition should have been for $313.03, and costs of suit, and therefore is excessive to the amount of $4!.M, for which reason the judgment should be reversed. The judgment was taken in the trial court by default. We find that the judgment is excessive, and will render such judgment as should have been reiidered below. The judgment here rendered is that Richard C. Anderson, assignee of the Dayton Plow Company, do have and recover of Charles Burie and William Pickens, composing the partnership firm of Pickens & Durie, the sum of $313.03. together with twelve per cent, per annum interest thereon from July 9, 1890, until paid, and all costs of thé trial court, and that the defendant in error, Richard C. Anderson, pajr all costs of the writ of error, as well as the costs of this court.

May 20, 1891.

Reversed and rendered.