Weed v. Weed

25 Conn. 494 | Conn. | 1857

Storrs, C. J.

This writ of error was brought upon the original record of the judgment rendered in the superior court. As that record has, since this writ of error was brought, in consequence of its not stating correctly the proceedings of that court, been amended and corrected by that court, so as to state those proceedings truly and formally, and a new record, on such correction, substituted, it is obvious that the latter is now the only subsisting record of the proceedings and judgment of the superior court in the case, and that the original record is annulled, and consequently, in contemplation of law, has no legal existence. It would therefore be futile, and indeed irregular, to treat it on this writ of error, as a subsisting record or evidence of the proceedings of the superior court. It moreover appears, by reference to the decree of that court, by which its original record was so amended, that the plaintiff in error (the defendant below) was thereby expressly perpetually enjoined from claiming, in any form or place, that the judgment of that court was not as it appears to have been by the amended record; so that, on this ground, it is not,competent for the plaintiff in error to avail himself of any error which might be apparent on the record as originally made. Nor does he now undertake to do so. Any question, therefore, which is made, as to the correctness of the judgment of the superior court, must be made upon its judgment as evidenced by the record so amended, and the parties in the present case, waiving the want of technical form in bringing the question of the validity of the judgment, as evidenced by such amended record before us for revision, have, accordingly, treated the case as though the record had been originally made as it now appears in its amended shape; and the question is, whether such record discloses any error in the judgment of the superior court. We are of opinion that it does not.

The first ground on which the plaintiff in error claims that the judgment of the superior court is erroneous, is that the court allowed interest on the sum for which the verdict was rendered, after deducting from that sum the $117, which was remitted by the plaintiff below, (the defendant in error.) The superior court, in pursuance of the advice of this court, refused a new trial in that case, provided the plaintiff should remit that amount, and it was remitted accordingly. It was found that, for the balance, the verdict was right, and that there was no reason for disturbing it. In respect to that balance, as the proper remittitur was made, the verdict was established, and a new trial was consequently refused. As the result showed that the collection of the amount of that balance was wrongfully delayed by the motion of the defendant below for a new trial, we think that the case was equitably, if not literally, within the terms of the rule established by the superior court, (18 Conn., 575,) that where a motion for a new trial made by a defendant does not prevail, he shall pay interest on the plaintiff’s debt while its collection is delayed by it. The defendant not having paid or offered to the plaintiff the amount to which the latter was rightfully entitled, as he might have done when the judgment was rendered, it is just that he should pay interest while payment of it was thus delayed. On this point, therefore, there is no error.

The only other ground on which the plaintiff in error complains of the judgment below, is that the superior court ought to have required a remittitur, not only of the $117, but of the interest on that sum from July 1st, 1843, to the rendition of the judgment at the October term, 1851. It is a conclusive answer to this objection, that it does not appear from the record of the superior court, on what ground, or for what reason, that sum was required to be remitted, or that it was for an item on which it would have been legal or just that the defendant below should be allowed any interest. That such might possibly have been the case, is not a sufficient reason for pronouncing the judgment below to be erroneous ; it is for the plaintiff in error to show affirmatively that it is so. The remittitur of any sum was for his benefit, and it rests upon him to show that it ought to have been greater. But it appears from the record that the superior court ordered that the plaintiff below should endorse, on the execution upon his judgment, the sum of $57.75, “ claimed to have been improperly included in said judgment,” without stating on what ground such claim was made. It does not appear from the record how that sum was arrived at, or of what it consisted; but it has been taken for granted, on the argument before us, that it was the amount of interest on the $117, which the plaintiff in error claims should have been allowed on it. If this is the case, he has not received, and can not receive, any injury; and this court has decided, on the motion in error brought from the decree of the superior court, amending the original record in this case, and putting it in its present shape, that there was no error in the decree in directing the endorsement on the execution to be made which is now complained of. Weed v. Weed, ante, p. 337. To what was then said by us, it may be added, that although the more technical mode might have been to render judgment for the amount of the original judgment, after having deducted therefrom the sum ordered to be endorsed on the execution, yet the judgment, taken in connection with the order, that that sum should be endorsed on the execution, amounted virtually to such a judgment; and for a merely formal and unsubstantial error of this description, the judgment should not be disturbed.

The judgment of the superior court is therefore affirmed.

In this opinion the other judges, Hinman and Ellsworth, concurred.

Judgment affirmed.