Lead Opinion
Suit was brought, alleging that the defendant was indebted to the plaintiff in the sum of $174.16, with interest from July 2, 1912, on an open account a copy of which was attached to the petition. The debit side of this account covered about four pages of typewritten matter, which, under the headings “Date,” “Amount,” “Days,” contained entries not intelligible on inspection by this court. There was also attached a typewritten page of credits, equally lacking in clearness. The total of the debits claimed appeared to aggregate $563, including a charge for interest. The total of the credits, including an allowance for interest, appeared to aggregate $389.20. The case being in default, a verdict was taken in favor of the plaintiff against the defendant for $389.20, with 7 per cent, interest thereon from July 5, 1912, to the date of the verdict, which was March 3, 1913. Judgment was entered accordingly. On November 10, 1913, the plaintiff filed a motion to amend the verdict and judgment by changing the finding from the amount stated to $174.16, with interest at 7 per cent, from July 2, 1912. Eeld, that under such facts there was no error in overruling the motion to amend. The plaintiff having apparently taken a verdict by default, not for the amount alleged to be due it, but for the amount of credits which appeared in its open account to be due its adversary, it could not at a later term of court, in effect, take an entirely new verdict for an amount which would have been the difference between the aggregate of the debits set out in its account against its adversary and the credits due to such adversary, with interest from an earlier date than that specified in the verdict, under the. name of amending the verdict and judgment.
Judgment affirmed.
Concurrence Opinion
concur in the foregoing ruling on the facts stated; but do not go to the extent of holding broadly that if a petition. claimed a specific amount, and the jury found more than was claimed, the plaintiff could not write off the excess, or have a verdict and judgment amended for that purpose. But the facts of this case do not require such a holding.