| Superior Court of New Hampshire | Jul 15, 1852
If, in an action of trespass against several defendants, the jury assess several damages, the plaintiff may enter a nolle prosequi as to one of the defendants and take judgment against the others; or he may enter a remittitur as to the lesser damages; or he may take judgment against all the defendants for the greater damages, de melioribus damnis, without entering a remittitur. 2 Tidd’s Prac. 805; Heydon’s case, 11 Co. 5; Walsh v. Bishop, Cro. Cha. 239, 243; Rodney v. Strode, Carth. 19; Sabin v. Long, 1 Wils. 30; Holley v. Mix, 3 Wend. 350" court="N.Y. Sup. Ct." date_filed="1829-10-15" href="https://app.midpage.ai/document/holley-v-mix-5513252?utm_source=webapp" opinion_id="5513252">3 Wend. 350; Halsey v. Woodruff, 9 Pick. 555; Johns v. Dodsworth, Cro. Car. 192.
But if in such case the damages are separately assessed and judgment is taken for the whole, it will be bad on error, and the judgment must be reversed. Sabin v. Long, 1 Wils. 30; Crane v. Hummerstone, Cro. Jac. 118; Mitchell v. Milbank, C. D. & E. 199; Halsey v. Woodruff, 9 Pick. 555.
The judgment rendered by the justice in this case is erroneous for this cause. It is also erroneous for the reason that the justice has rendered a judgment for a greater amount of
If the jury return a verdict for a greater amount of damages than are demanded by the ad damnum of the writ, the defect may be remedied by a remittitur of the surplus. But if judgment is rendered for the whole amount, it may be reversed. Same cases.
The justice here had jurisdiction, the jurisdiction being determined by the damages demanded, not by the amount awarded. Rev. Stat. ch. 175, § 1. The judgment in such a case is not void, nor liable to be treated as a nullity. Smith v. Keen, 26 Me. (13 Shepl.) 411.
Unless the party avails himself of the legal remedy to revise or correct the judgment, he is bound by it, and cannot question it collaterally. Tilton v. Gordon, 1 N. H. Rep. 133; Snow v. Prescott, 12 N.H. 535" court="None" date_filed="1842-01-15" href="https://app.midpage.ai/document/snow-v-prescott-8504549?utm_source=webapp" opinion_id="8504549">12 N. H. Rep. 535; Bryant v. Allen, 6 N.H. 116" court="None" date_filed="1833-03-15" href="https://app.midpage.ai/document/bryant-v-allen-8503867?utm_source=webapp" opinion_id="8503867">6 N. H. Rep. 116.
As the defendants here had a right of appeal, (Rev. Stat. ch. 175, § 6,) they had no other remedy to revise this judgment. Medcalf v. Swett, 1 N.H. 338" court="None" date_filed="1818-11-15" href="https://app.midpage.ai/document/medcalf-v-swett-8503210?utm_source=webapp" opinion_id="8503210">1 N. H. Rep. 338.
Every appeal assumes that, in the opinion of the appellant, the judgment appealed from is wrong. The nature of error committed by the justice is not material. The object of the appeal is that the case may be tried anew, and a proper judgment entered.
The nature of an .appeal is in this respect different from that of a writ of error. The writ of error is designed to test the correctness of the proceedings as they appear upon the record, that they may be reversed or set aside. It is a new and independent proceeding. The appeal is a continuation of the original proceeding; its object is to carry the cause to a higher tribunal, to be there tried anew, and a new judgment entered, according to the opinion of the court above. The case proceeds in the court of appeal substan
The effect of the appeal is to vacate, for most purposes, the judgment below; and the judgment rendered in the court above is a distinct and original judgment. Campbell v. Howard, 5 Mass. 376.
The object of the appeal, to obtain a new trial and a correct judgment, would of course be entirely defeated, if the case should be dismissed on account of the very error for which the appeal was taken.
Motion denied.