Snider v. Lyons

285 F. 932, 52 App. D.C. 198, 1922 U.S. App. LEXIS 2032

• Court: Court of Appeals for the D.C. Circuit
• Decided: December 4, 1922
• Docket: No. 3761
• Status: Published

Opinion

VAN ORSDEL, Associate Justice.

Appellee, plaintiff below, sued appellant in the municipal court of this District upon an account stated claiming interest from August 1, 1916. A judgment was recovered, with interest from August 28, 1916. On appeal to the Supreme Court of the District of Columbia, a jury found for plaintiff, with interest from August 1, 1916.

Defendant moved for a new trial upon the ground that there was no evidence that an account had been stated on August 1, 1916. Plaintiff filed a remittitur of the interest from August 1 to 28, 1916, whereupon defendant moved an arrest of judgment, challenging the power of the court by remittitur to determine, without the aid of a jury, that an account was stated on August 28, 1916.

The court denied the motions, and from the judgment entered this appeal is prosecuted.

The testimony adduced at the trial is not before us by bill of exceptions; hence it will be presumed that the trial court was justified in finding that an account was stated August 28, 1916. Assuming this date to be correct, the verdict was at most defective in form, to the extent of including a few extra days interest. This defect was cured by the remittitur, and the ground of the motion for a new trial was removed. A judgment based upon a verdict, which the court has corrected, by remittance of excess interest, in order that it may conform with the evidence, is not subject to reversal upon that ground alone. Railroad Co. v. Dougherty, 7 App. D. C. 378.

The judgment is affirmed, with costs.