43 N.H. 410 | N.H. | 1861
Upon review, the action is to be tried as if no verdict had ever been rendered — in the same manner as if no judgment had been “ rendered thereontherefore, nothing can be done here, in the way of correcting an error in the former judgment, but by a trial of the cause anew, and opening the merits of the whole action.
The ruling of the court, to that effect, is therefore sustained. After this ruling was announced, the writ of review being still pending, the original action was brought forward, and a motion made by the plaintiff to correct the judgment, by adding to it the amount of the interest on the verdict from the time it was rendered until judgment was entered up.
Upon the facts reported, we are of the opinion that the allowance of interest upon the amount of the verdict would have accorded with the general course of practice in this State, and is sustained both by principle and authority.
Up to the time of the decision of Robinson v. Bland, 2 Burr. 1085, the general practice appears to have been the other way in England, and even to allow no interest after the commencement of the action. But the question was much discussed in that case, by Lord Mansfield, and the allowance of such interest in general put upon very solid ground; holding that “nothing can be more agreeable to justice than that the interest should be carried down quite to the actual
This decision accords also with the practice of courts of equity, where interest, after the master’s report, is usually added in making up the decree. 2 Dan. Ch. Pr. 1442, and notes; Brown v. Barkham, 1 P. Wms. 653; and Pickens v. Baynton, 1 Bro. Ch. Rep. 574.
The general doctrine of these cases is recognized in Ondenburg v. Hallet, 1 Johns. Cases 27; People v. Gaine, 1 Johns. 343; Williams v. Smith, 2 Caines 253; Lord v. Mayor, &c., 3 Hill 426; Ball v. Ketchum, 2 Denio 188; Vail v. Nickerson, 6 Mass. 262; Winthrop v. Curtis, 4 Greenl. 297. In many or most of these cases the allowance of interest upon the amount of the verdict is confined to cases where the delay was caused by the act of the defendant; but now, by statute in New-York, this distinction is disregarded.
By our statute, interest is now payable on all executions in civil actions from the time judgment is rendered (Comp. Stat. 496, sec. 6.); and it will be perceived that no distinction is made as to the nature of the action in which the judgment was rendered; and, it will also be observed, that this law carries out the suggestion of Lord Mansfield, that justice requires that interest should be carried down to the time of payment. The verdict of the jury, if judgment is rendered upon it, must he regarded as showing the amount justly due at the time it is rendered, and, in most cases, whether ex contractu or ex delicto, interest, eo nomine, is included in the verdict, at least from the commencement of the suit; and in the other cases it may reasonably be supposed.that it is in some form taken into account. No solid reason, we think, can be given for withholding the interest between the finding of the jury and the rendering of judgment, as it is quite clear that, under our law and practice, interest should be allowed at all other times, from the commencement of the suit at least, until payment and satisfaction of the judgment.
The question then is, whether the judgment can be examined and corrected in this way. It appears that, at the time the judgment was rendered, application was made to the court to allow the interest; that the application was considered, and the interest disallowed, and, without any motion to transfer the question, the judgment was entered up and satisfied.
Under these circumstances, we think the whole matter must be regarded as res judicata. It is not the case of a mere clerical error in entering up a judgment which was properly ordered by the court, nor an error caused by fraud, but it was entered up in accordance with the opinion of the court, from which neither party thought
As to the writ of review, the ruling of the court must be sustained, and the order to correct the original judgment must be reversed, and the motiop denied.