Breck v. Smith

| Miss. | Oct 15, 1870

TaRBELL, J.:

This is an action in form of trespass on the case upon promises brought by Martha Smith, against B. E. Saunders and B. M. Davis, to recover the amount of a sealed note for ten thousand dollars, dated January 16,1860, payable January 1,1861, with ten per cent, interest from its date.

Payments were made upon said note as follows: January 31,1863, $969 37; April 20,1865, $1,000.

On the second day of October, 1866, judgment by default was entered for the sum of $15,675 38, besides costs, in the circuit court of Madison county. From this judgment the assignee in bankruptcy of Saunders prosecuted a writ of error for the reversal of the same, and alleges the following grounds therefor:

1st. That the action is misconceived, it being trespass on the case upon promises, while the writing sued on is a sealed note, or bill single.

2d. That the judgment is excessive, being for more than the balance due for principal and interest.

As to the form of the action, the mistake is cured by art. 181, p. 508, Bev. Code.

We have reviewed the calculation of interest submitted by counsel, and find the judgment to exceed the amount due on the note by about- the sum fixed by such calculation. From the fact that counsel do not raise the question, we infer that they do not disagree as to the rule by which the interest on the note in this case is to be' calculated. Following the rule of computation as prescribed by art. 4, p. 370, Bev. Code, our result varies from that of counsel only one dollar.

In case of an excess in any judgment and its release, art. 188, p. 509, Rev. Code, enacts that,“ If the record of any such judgment be removed to an appellate court, before such release shall be made, it shall be competent for the defendant in error to make such release as aforesaid, in the appellate court; and thereupon the said court, after reversing the judgment, shall proceed to give such judgment as the court below ought to have been given if the release had been filed therein ; but in such cases, the appellee or defendant in error shall pay the costs, and the judgment shall not be entered against the sureties in the appeal or writ of error bond.”

Following this provision of the Revised Code, it only remains for us to reverse the judgment because of such excess.

But we direct such judgment here as the court below ought to have entered.