Erwin v. Jones

• Decision Date: 07 February 1917
• Docket Number: No. 1946.,1946.
• Citation: 191 S.W. 1047
• Parties: ERWIN v. JONES.
• Court: Missouri Court of Appeals

191 S.W. 1047

ERWIN v. JONES.

No. 1946.

Springfield Court of Appeals. Missouri.

February 7, 1917.

Appeal from Circuit Court, Jasper County.

Action by Mollie Erwin against A. M. Jones. There was judgment for plaintiff, which defendant paid, with interest, and from an order requiring the clerk to pay over to plaintiff interest for a prior period on deposit with him, defendant appeals. Order reversed, and cause remanded, with directions to enter an order that the clerk pay the money back to defendant.

I. V. McPherson, of Aurora, and W. Cloud, of Pierce City, for appellant. Theodore Alvord, of Pierce City, and Mayhew & Sater, of Monett, for respondent.

FARRINGTON, J.

The question on this appeal is purely one of law. The facts are simple. On December 9, 1914, the plaintiff recovered a judgment against defendant for $5,000 damages. Within the time allowed by law defendant filed a motion for a new trial, assigning as one of the reasons that the verdict was excessive. The court of its own motion continued the cause until March 19, 1915, at which time it appears the court found that the verdict was excessive, and further found that the sum of $3,500 was the fair and reasonable amount of plaintiff's debt and damages. The attorney for the plaintiff appeared in court, and remitted of the said verdict the sum of $1,500, and the judgment rendered December 9, 1914, was by the court set aside, and a new judgment rendered and entered for the sum of $3,500. A record entry was then made that the court found the verdict was excessive, and that $3,500 was fair and reasonable. As before stated, the court after the filing of the remittiture of $1,500, entered a new judgment for $3,500 as of March 19, 1915, to which action plaintiff offered no objection. An appeal from that judgment was brought to this court by the defendant wherein the judgment was affirmed. Erwin v. Jones, 192 Mo. App. 326, 180 S. W. 428. The defendant then paid to the plaintiff the sum of $3,500 and an additional sum representing interest from March 19, 1915, and claimed that by such payment he had fully discharged the judgment. The plaintiff contended that she was entitled to interest from the entry of the first judgment, to wit, December 9, 1914, and that the defendant would not discharge the judgment without also paying interest from December 9, 1914, until March 19, 1915, on which date the original judgment was, without objection by plaintiff, set aside, and a new one for $3,500 entered....