3 Minn. 347 | Minn. | 1859
By the Court
This action was upon a promis
Judgment was entered in pursuance of the ruling of the Judge, and the Defendant brings error to this Court.
It is objected that an application should have been made to the Court below to correct the assessment of damages, before taking the case to this Court, under the ruling in the case of Babcock and Hollinshead vs. Sanborn and French, and kindred cases decided by this Court, as the withdrawal of the Defendant’s answer placed the case in the condition it would have occupied had none been interposed, and made the Clerk the proper officer to assess the damages and enter the judgment. This is, however, an incorrect view of the practice. There was no default. The Defendant had appeared and answered, and the cause was on the calendar ready for trial; when reached, the Defendant abandoned the issue he had formed, and simply contested the question of the amount of damages. The Court had a right, perhaps, to treat the case as if no answer had been put in, and send it to the Clerk for judgment as for want of an answer, yet he certainly had the power to determine the question himself when requested to do so by the parties. Any question of damages, costs, or otherwise, that belongs to the Clerk to determine, may in the first
The Court erred in allowing the -Defendant to recover the five per cent per month after the maturity of the note. That sum was inserted as a penalty, to secure the payment of the principal punctually at maturity. Mason, Craig et al. vs. Callendar, Flint & Co., 2 Min. R., p. 350. As there was no interest stipulated in the note, the damages on the default of the maker to pay it at maturity, must be governed by See. 2, Chap. 30, new ed. Stat., which would fix it at seven per centum per annum under the reasoning of the Court in Mason, Craig et al. vs. Calendar, Flint & Co., and Talcott vs. Marston, argued at this term. The Plaintiff in Error makes a question on the amount of costs allowed below, but as the record does not show that it was passed upon by the Judge, we decline deciding it.
The damages should have been for the amount of the note, with seven per centum per annum interest on that amount from the date of the maturity of the note until judgment; we modify the judgment by striking out the excess, and approve it as to balance.