Fitch v. Polke

5 Blackf. 86, 1839 Ind. LEXIS 18

• Court: Indiana Supreme Court
• Decided: May 21, 1839
• Status: Published

Opinion

Blackford, J.

Debt by Police against Fitch on a promissory note. The note was for the payment of 685 dollars with interest, and was dated the 14th of August, 1837. Plea, nil debet as to 150 dollars, parcel, &c. The plaintiff joined issue on the plea, and prayed judgment for the part unanswered.

A judgment was then entered, that the plaintiff ought to recover the sum of 535 dollars, parcel of the debt in the declaration mentioned which remains unanswered, and also the sum of 32 dollars and 10 cents damages for the detention thereof; but because of the issue as to 150 dollars, the residue of the debt, let the further judgment be stayed until the determinatipn of that issue.

H. Chase, for the plaintiff. H. Cooper, for the defendant.

A jury was afterwards impanelled to try the issue, and a verdict found in favour of the plaintiff for the sum of 685 dollars in debt, and 42 dollars in damages. The defendant moved for a new trial, on the ground that the verdict was for too large a sum. The plaintiff entered a remittitur of 535 dollars debt and 33 dollars and 44 cents damages, of the amount found by the jury.

The Court overruled the motion for a new trial, and rendered final judgment, on the 31st of August, 1838, in favour of the plaintiff for 685 dollars debt, and 41 dollars and 47 cents damages, making in all the sum of 726 dollars and 47 cents, together with costs.

There is no error in these proceedings. A part of the cause of action w1 *****7as unanswered, and the issue of fact as to the residue was found for the plaintiff. He was therefore, under the circumstances of the case, entitled to a final judgment for the amount of the debt sued for with interest; and that is the amount of this judgment

(1).

Per Curiam.

The judgment is affirmed with 6 per cent. damages and costs.

Vide Cross v. Watson et al. May term, 1842. If the declaration in assumpsit or covenant contain not only a recoverable claim, but also another not recoverable, it may be advisable to plead only to the latter, and let the plaintiff take judgment by default as to the former, in which case the plaintiff must enter a nolle prosequi as to the unsustainable part of his claim, or proceed to issue and trial at the peril of costs as to the latter ; or the defendant may, to avoid the costs of an inquiry, confess the action as to part and as to named damages, and plead as to the residue ; but then immediately execution for the sum confessed might issue. 3 Chitt. G. P. 674.