30 Minn. 308 | Minn. | 1883
This action was commenced in justice court, where judgment was recovered by the plaintiff. The defendant appealed to the district court upon questions of law alone, and the judgment of the justice was reversed. From such judgment of reversal the plaintiff appealed to this court.
The complaint alleged the incorporation of the plaintiff, and the making by the defendant to the plaintiff of his promissory note, whereby he promised, for value received, to pay plaintiff or order, at a time named, the sum of $73, with interest, with the further condition that if the same was not paid when due, and suit should be brought thereon, the defendant would pay the sum of $10 as attorney’s fees, in addition to the taxable costs. The answer, which was verified by the defendant’s attorney to the effect that he believed it to be true, denied the making of the “note,” and denied the incorporation of the plaintiff. Upon the trial the plaintiff offered in evidence an instrument in writing, with the name of George Clark appended as signer or maker thereof, bearing the date and expressing the promise or contract alleged in the complaint. The instrument contained certain other terms of agreement respecting the title and possession of personal property, and was 'not a simple promissory note. This evidence was objected to as being irrelevant, and for variance from the complaint, but was received and judgment rendered thereon, no other evidence being presented. The j ustice added to the -taxable costs $10, under the stipulation for attorney’s fees, and, probably by some error in computation, added 30 cents more-to the costs, which does not seem to have been properly included therein.
To the extent of the $10 included in the judgment as attorney’s fees, .and of 30 cents, error in computation of costs, the judgment of the justice was erroneous. A reversal in the district court was not, however, necessary; the judgment should have been modified by deducting the $10.30.
The judgment of the district court is reversed, and the- cause remanded to that court that judgment may be entered as above indicated.