Foster v. Van Norman

| Tex. | Dec 15, 1846

LtpscoMB, J.

There is no statement of facts or bill of exceptions in this cause, and no objection to the verdict in the court below.

It is now assigned for error that the verdict and judgment are for more than the plaintiff had claimed in his petition. If the calculation of interest, at eight per cent., is made on the sum claimed, it will not quite amount to the judgment. The difference, however, is small; and if a mistake of a character like this had been noticed it would have been corrected in the court below. And it further appears that before the suing out of the writ of error by the defendant, the plaintiff below, believing that an error to a small amount had been made in the calculation of the interest by the jury, entered a credit for a larger amount than the excess, on the execution. The execution itself is not before ns as a part of the record, but as the plaintiff below would have been allowed to file a remittitur in the office of the clerk, and this execution having been certified by the clerk, it will satisfy ns that no injustice has been done to the plaintiff in error. All that he could have asked would have been a remittitur of the excess in this court, if it had not already been allowed to him.

Another error assigned is that the record shows the names of but eleven jurors. The record states that the parties appeared by their attorneys, and thereupon came a jury of twelve good and lawful men, and names but eleven. After verdict under such circumstances, it is a fair inference that there were, in truth, twelve men on the jury, but that by a mistake of the clerk in entering the names of the jurors, the name of one was omitted. The parties made no objection to the jury and received it as a good and lawful one, after verdict and judgment; and no objection appearing to have been made at the time,, it will not be noticed in this court.

The judgment is affirmed.