Beckwith v. Boyce

12 Mo. 440 | Mo. | 1849

Dissenting Opinion

Judge Birch

dissenting.

¡ am unable to perceive any thing in the reason of the rule relied up■on in this case;, to demand the reversal of the judgment. The verdict of the jury, in finding the issues for the plaintiff, and assessing his damages at 674 dollars, was the only means they had of saying that at the time of writing his declaration-, or bringing -his suit, the defendant had damaged the plaintiff five hundred dollars, and that during the six or sévén years intervening, between that period and the time the defendant permitted it to come to a final trial, (which it has not, even yet,) the interest justly accruing on the sum found to have been due should be added. This, I respectfully submit, though it be against all previous authority, should not be held to he a finding beyond the claims of the declaration. Its language, in this case, as is usual, is to the effect that the plaintiff hath sustained (not -will sustain) damages in a given sum, and that therefore he sues—and I can but deem it more natural as well as more just, that this averment, or “Count,” should be held, in opposition to mere legal fiction, to have relation to the time of suing, instead of the indefinite period of bringing the cause to final trial. There being, therefore, to my mind neither reason nor justice in compelling this plaintiff to go back to the court below and pay the costs of amending an originally good declaration, in order to commence his suit anew, I think we should at least properly modify the unnecessary and undiscriminating harshness of the rule¿ rather than contribute longer to perpetuate it.

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Lead Opinion

Judge Napton

delivered the opinion of the court.

In this case the damages found by the jury, exceeded those laid in the declaration, and the judgment was in accordance with the verdict. There was no motion in arrest in the court below. In accordance with the previous decisions of this court, the judgment must be reversed. Carr vs. Edwards I Mo. R. 137.