Haven & Buck v. Baldwin

5 Iowa 503 | Iowa | 1858

Wright, C. J.

That this judgment is for an amount greater than that to which plaintiffs are entitled, as claimed in their petition, we entertain no doubt. The amount claimed is one hundred and sixty-one dollars and fifty-two cents, while the judgment is for two hundred and twenty-seven dollars and forty-six cents. In addition to this, the affidavit states that there is still due thereon, the amount claimed in the petition. The defendant had a right to suppose from these pleadings, that this was the amount of the plaintiffs’ demand, and for this amount, he may have been willing that plaintiff should take judgment. Rut he certainly had no reason to suppose, that plaintiffs could recover some sixtysix dollars more than his claim; and it was error for the court, under the circumstances, to so find.

It is insisted, however, that plaintiffs, by their petition, ask judgment for one hundred and sixty-one dollars and fifty-two cents, with interest and costs, and under the claim for interest, it was their right to have judgment for the original judgment, with the interest which had accrued thereon from the time of its rendition. That they would have the right so to recover, under a petition properly framed, is quite clear. Rut we do not understand this petition to make any such claim; but, on the contrary, that the claim for interest, is for what may accrue from the time of commencing this proceeding to the time of rendering judgment. And this view is placed beyond all controversy, by the affidavit annexed to the petition, which states, that there is due on the judgment, the amount claimed in said petition, and not that the judgment and the interest accruing thereon, is still due and unpaid. In this respect, the petition follows substantially the form given in the Code, (section 2518), and under the general prayer for judgment contained in that form, we do not understand that a party can recover interest beyond that which may accrue upon the claim made, after the commencement of his suit. A party may, it is true, so present his claim as to recover the previous interest. For instance: if he sues upon a promissory note, or upon a judgment, he may claim the amount of the note or judgment, (stating the amount for which the note was given or the judgment rendered,) and the interest that may appear to be due thereon. In such cases, there would be no difficulty in allowing him the interest claimed. In this case, however, the fair construction of the plaintiffs’ pleading is, that they ask interest upon the amount of their demand, from the time of the commencement of their suit in Pottawatamie county, which was March 20, 1857, and under which they would have a right to interest for about two months, or about the sum of one dollar and sixty cents.

Appellant alsp assigns for error, the action of the court below, in overruling his motion to dismiss the case. The position assumed is, that this is a proceeding by scire facias, and that it should have been commenced in Wappello, and not in Pottawatamie county. ¥e are disposed to treat the proceeding, however, as an ordinary action, (under the old system of practice, an action of debt,) and that plaintiffs could sue in Pottawatamie, or any other county, where the defendant resided. The judgment was rendered more than five years before the commencement of this proceeding, and before plaintiffs could enforce its collection by execution, the law required then to sue out a scire facias, and procure the necessary order of the court thereon. Such a writ could only issue properly from the court in which the judgment was rendered. Carnes v. Crandall, 4 Iowa, 151. We do not understand, however, that the party is confined to the proceeding by scire facias, but think he may bring an action to recover the amount due, in the same manner that he may sue upon any other demand. And this view is sustained, as we conclude, by section 1659 of the Code. In this case, the petition does not ask to revive the original judgment; nor is there anything tending to show that plaintiffs seek the collection of their judgment, by praying that they may have the right to issue execution thereon. The petition is wanting in almost every requisite, to make it a proceeding by scire facias. The affidavit annexed, might, in view of the language of section 2177, lead us to treat the proceeding as one to revive the judgment. The prayer and object of the petition, however, so clearly negatives this conclusion, that we feel justified in regarding the affidavit as either surplus-age, or if not so, at least as not changing what is otherwise the plain and manifest purpose and object of plaintiffs’ action.

Judgment reversed.