Beckwith v. Boyce

• Citation: 12 Mo. 440
• Parties: BECKWITH, ADM'R OF SMITH, v. BOYCE.
• Decision Date: 31 March 1849
• Court: United States State Supreme Court of Missouri

12 Mo. 440

BECKWITH, ADM'R OF SMITH,

v.BOYCE.

Supreme Court of Missouri.

March Term, 1849.

ERROR TO ST. LOUIS CIRCUIT COURT.

BOGY, for Plaintiff.

1. The judgment below is erroneous, because it is for a greater sum than is laid in plaintiff's declaration. 2 Blackf. 459, Johnson v. Hawkins; 3 Blackf. 133, Phillips v. Nichols; 2 U. S. Digest, 665; 2 Howard, 686, Potter v. Prescott. 2. Where a judgment in an action of assumpsit is for a greater sum than the damages laid in the declaration, it is error. 1 Mo. R. 615, Johnson v. Robertson; Carr, &c., v. Edwards, 1 Mo. R. 137; Maupin v. Triplett, 5 Mo. R. 422.

POLK, for Defendant.

1. The only mode of taking advantage of a merely defective or imperfect finding of a jury is by motion in arrest of judgment. Finney et al. v. The State, 9 Mo. R. 636; Davidson v. Peck, 4 Mo. R. 445. 2. This court is one whose jurisdiction in all civil actions between citizen and citizen is exclusively appellate for the correction of errors by the inferior courts of record, and therefore it will not reverse the judgment of the inferior court for any matter which is not distinctly brought before that court and passed on by it. State Constitution; 4 Wend. 182 et seq., Houghton v. Starr; 2 Wend. 144; 2 Cowen, 31; 17 Johns. 469, Henry v. Cuyler. 3. I assume the position that the mere circumstance that the verdict was for a greater sum than the damages laid in the declaration, ought not to be sufficient ground for reversing the judgment. 4. The affidavit of the attorney of record filed in this court shows that it was by his mere oversight and default that the damages laid in the declaration were less than the amount found by the jury. And it is expressly enacted by the Legislature that the judgment shall not be reversed for any default or negligence of the attorney, by which neither party shall have been prejudiced. Code of 1845, p. 827-8, § 7.

NAPTON, J.

In this case the damages found by the jury exceeded those laid in the declaration, and the judgment was in accordance with the verdict. There was no motion in arrest in the court below. In accordance with the previous decisions of this court, the judgment must be reversed. Carr v. Edwards, 1 Mo. R. 137. ^(a)

BIRCH, J., dissenting.

I am unable to perceive anything in the reason of the rule relied upon in this case, to demand the reversal of the judgment. The verdict of the jury, in finding the issues for the plaintiff, and assessing his damages at $674, was the only means they had of saying that at the time of writing his declaration, or bringing his suit, the defendant had damaged the plaintiff five hundred dollars, and that during the six or seven years intervening, between that period and the time the defendant permitted it to come to a final trial (which it has not, even yet), the interest justly accruing on the sum found to have been due should be added. This, I respectfully submit, though it be against all previous authority, should not be...