Chambers v. Carthel, 35 Mo. 374

Chambers v. Carthel

35 Mo. 374 | Mo. | 1865

Bates, Judge,

delivered the opinion of the court1.

The defendant suffered judgment to go against him by default, and at a subsequent term moved the court to set aside the judgment for the following reasons:

1. Said judgment is irregular in this, that it is rendered for a greater sum than plaintiff is entitled to by the instrument on which he brings suit.

2. Said judgment bears ten per cent; interest, and the-said instrument sued on draws no interest.

3. Said-judgment is rendered for damages, and plaintiff is entitled to none.

The motion was overruled and the defendant brings up the case.

The Circuit :Court did not err in overruling the motion. Without adverting to other reasons in support of the judgment of the Circuit Court, it is sufficient to say, that-the motion is upon grounds which would require the court to review the evidence upon which the judgment was given. It claims that the judgment is too large, not because it exceeds the amount claimed in -the petition, but because it exceeds the amount to which he was entitled by the-instrument sued on. The promissory note is not a part of the petition, though *376filed with it, and the clerk in certifying to this court a copy of the record, did wrong in copying the note into it; the note is no part of the record. For all that appears by the record, the judgment of the Circuit Court is correct in every particular.

Judgment affirmed.

Judges Bay and Dryden concur.