Roberts v. Muir

7 Ind. 544

Opinion

Perkins, J.

Muir sued Roberts and Roberts upon a complaint as follows:

11 James Muir complains of William Roberts and Jacob Roberts, and says, that the defendants, by their note, on the 16th day of August, 1840, promised to pay the plaintiff forty-two dollars and fifty-four cents, with interest at the rate of ten per cent, per annum, if not punctually paid when due; a copy of which note is herewith filed, which remains unpaid. And plaintiff demands judgment for fifty-six dollars.”

The defendants answered, setting up payment and usury. Reply. Trial, and judgment for the plaintiff for a fraction over 78 dollars. The defendant excepted to the entry of judgment for more than the sum claimed in the complaint. The exception was well taken and should have been sustained. 2 R. S., p. 38.— O’Neal v. Wade, 3 Ind. R. 410.

I W. Robinson, for the appellants. D. Kelso and J. W. Gordon, for the appellee.

Excessiveness of damages is ground that will sustain a motion for a new trial. 2 Swan’s Pr. 925.

Per Curiam.

The judgment is reversed with costs, Cause remanded, with leave to the plaintiff to amend his complaint.