8 Ala. 731 | Ala. | 1845
The statute which gives damages when it appears to the Court that an appeal was taken for delay merely, (Dig. 315, § 13,) does not in terms include suits removed by certiorari; and in Hudnell v. McCarty, Minor, 402, it was held not to warrant the assessment of damages in such a suit. The fact that the jury have returned a verdict for this amount of damages will not sustain the judgment rendered on it, because that was not a matter within the issue, and the plaintiff should not have taken judgment for any thing but the sum found due upon his demand.
It is supposed this, at most, is a clerical misprision, which could be corrected on motion, in the Court below; we should have been pleased if we could have arrived at this conclusion; but the duty of the clerk is to enter the judgments according' to the verdicts, unless otherwise directed by the Court, which itself is merely passive. In point of law, it is the duty of the party so to free the verdict and judgment from extraneous matter, as not to create error, to the injury of the opposite party.
Judgment reversed, and here rendered on the verdict for the proper sum.
