Schilling v. Speck

26 Mo. 489

• Court: Supreme Court of Missouri
• Decided: March 15, 1858
• Status: Published

Opinion

Richardson, Judge,

delivered the opinion of the court.

There is no bill of exceptions in this case, and, as we can not see the evidence, instructions or motions of any kind, we can only notice such questions as arise on the record proper. It appears that the jury returned a verdict in favor of the plaintiff for seven hundred and fifty-two dollars and sixty-nine cents, for which sum judgment was immediately rendered. Several weeks afterwards, during the term, the following entry was made : “ Now at this day comes said plaintiff by his attorney and remits one hundred dollars of the judgment herein, and the court having duly heard and considered the motion for a, new trial herein, and being fully advised of and concerning the premises, doth consider and adjudge that said motion be overruled.” No other entry appears in the transcript after the judgment, except the one allowing an appeal.

It does not appear that the judgment was corrected after the remittitur, but it was allowed to stand for the full amount of -the verdict. It was the duty of the plaintiff to have seen that the judgment was properly entered, and for a sum not greater than he was entitled to ; and for this error the judgment of the circuit court will be reversed, and judgment will be rendered in this court for the amount the plaintiff was entitled to after the remittitur. (Johnson v. Robertson, 1 Mo. 615)

The other judges concur.