McCutchen v. Dougherty

Mississippi Supreme Court

McCutchen v. Dougherty

44 Miss. 419

DecidedOctober 15, 1870

StatusPublished

This text of 44 Miss. 419 (McCutchen v. Dougherty) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

McCutchen v. Dougherty, 44 Miss. 419 (Mich. 1870).

Pincite

Opinion

SlMRALL, J.:

The preliminary question is, whether the writ of error is barred by the statute of limitations.

The judgment was rendered on the-day of November, A. D. 1865. The writ of error was issued the 26th day of March, A. D. 1870. The act of the 31st of December, A. D. 1862 suspended the statutes of limitations until twelve months after the close of the then existing war. Included in the suspension, was the act for prosecuting writs or error. Griffin v. Mills, 40 Miss., 614. The courts of the United States, as well as of this state, have fixed as the time of the close of the war, the 2d of April, 1866, the date of the president’s proclamation, declaratory of the fact.

As against the right to prosecute' this writ of error, the statute began to run on the 2d of April, 1867, so that the bar would not attach until the 2d of April, 1870. It follows then, that this writ was sued out in proper time.

2d. The return of the sheriff, on the summons, is a sub-' stantial, if not a literal compliance with the law. Surely, the execution of the writ, “ by delivering a true copy to the defendant in person,” is a personal service within the terms of the statute, so as to warrant a judgment by default final.

3d. The last objection made by the assignment of errors is, that whereas, the statute allows the judgment to bear the same rate of interest as the cause of action which is merged into it, this suit was founded oh two causes of action — a promissory note for $1,088 44, at 10 per cent, interest per annum, from date; and the balance on an open account of $270 00, at interest of 6 per cent, per annum. And the judgment does not separate these two amounts, and make each [423]*423part bear its appropriate rate of interest. The judgment is for $1,683 02, without specifying the rate of interest. If no rate of interest is prescribed in the judgment, it would bear interest at the rate declared by existing law. But, is this a matter of which the debtor can complain. If the creditor chooses to waive the higher rate, upon much the larger part of Ms debt, it is not seen how the debtor is prejudiced thereby. If, instead of claiming interest on the -aggregate amount of his note, at 10 per cent., and of his account at 6 per cent., and so specifying in the judgment, as he had a right to, but takes judgment for his entire amount, the plaintiff in error, instead of being injured thereby, is, perhaps, materially benefitted.

Let the judgment be affirmed.

Free access — add to your briefcase to read the full text and ask questions with AI

SlMRALL, J.:

The preliminary question is, whether the writ of error is barred by the statute of limitations.

The judgment was rendered on the-day of November, A. D. 1865. The writ of error was issued the 26th day of March, A. D. 1870. The act of the 31st of December, A. D. 1862 suspended the statutes of limitations until twelve months after the close of the then existing war. Included in the suspension, was the act for prosecuting writs or error. Griffin v. Mills, 40 Miss., 614. The courts of the United States, as well as of this state, have fixed as the time of the close of the war, the 2d of April, 1866, the date of the president’s proclamation, declaratory of the fact.

As against the right to prosecute' this writ of error, the statute began to run on the 2d of April, 1867, so that the bar would not attach until the 2d of April, 1870. It follows then, that this writ was sued out in proper time.

2d. The return of the sheriff, on the summons, is a sub-' stantial, if not a literal compliance with the law. Surely, the execution of the writ, “ by delivering a true copy to the defendant in person,” is a personal service within the terms of the statute, so as to warrant a judgment by default final.

3d. The last objection made by the assignment of errors is, that whereas, the statute allows the judgment to bear the same rate of interest as the cause of action which is merged into it, this suit was founded oh two causes of action — a promissory note for $1,088 44, at 10 per cent, interest per annum, from date; and the balance on an open account of $270 00, at interest of 6 per cent, per annum. And the judgment does not separate these two amounts, and make each [423]*423part bear its appropriate rate of interest. The judgment is for $1,683 02, without specifying the rate of interest. If no rate of interest is prescribed in the judgment, it would bear interest at the rate declared by existing law. But, is this a matter of which the debtor can complain. If the creditor chooses to waive the higher rate, upon much the larger part of Ms debt, it is not seen how the debtor is prejudiced thereby. If, instead of claiming interest on the -aggregate amount of his note, at 10 per cent., and of his account at 6 per cent., and so specifying in the judgment, as he had a right to, but takes judgment for his entire amount, the plaintiff in error, instead of being injured thereby, is, perhaps, materially benefitted.

Let the judgment be affirmed.

Cite This Page — Counsel Stack

Bluebook (online)

44 Miss. 419, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mccutchen-v-dougherty-miss-1870.

Opinion

Related

Cite This Page — Counsel Stack