Fowlkes v. Webber
| Decision Date | 31 December 1847 |
| Parties | FOWLKES v. WEBBER. |
| Court | Tennessee Supreme Court |
OPINION TEXT STARTS HERE
The plaintiff in error was sued in the Davidson circuit court in an action of covenant, and the damages laid in the writ at $1,000. At the September term, 1846, to wit, on the 16th day of September, a judgment by default was rendered, and a writ of enquiry awarded. Afterwards, at same term, to wit, on th?? 28th day of September, on motion of the plaintiff, leave was granted to amend his writ by making the damages $2,000. At the May term, 1847, the writ of enquiry was executed, and judgment rendered by the presiding judge (Maney) for $2,009.68.
J. M. Lea, for plaintiff in error.
It will not be denied that a judgment is erroneous and will be reversed, unless the defendant remits the excess over $2,000. 6 Yerg. 332. But in such case the defendant in error must pay the costs of the writ of error. 2 Dal. 184; 3 Ired. 349.
It is true, damages may be increased by amendment of the writ and declaration at almost any stage of the proceedings, or if judgment is rendered for too large an amount a remittitur may be entered; but the question here is, Can an interlocutory judgment be amended without notice to the defendant, so as to double his liability? As a necessary consequence, when damages are increased after interlocutory judgment, the pleadings must be opened. The final is founded upon the interlocutory judgment, and that claims only $1,000 damages, and at the time of its rendition no more in fact was claimed. If the amendment has application to the writ or declaration, and the writ is amended, then no interlocutory judgment has in fact been rendered, and the whole proceedings are erroneous. But suppose the amendment of the writ operates as an amendment of the interlocutory judgment, and to sustain the judgment this extraordinary length must be gone; then we contend that the pleadings should have been opened. The defendant's liability was increased, his rights prejudiced. The admission of one cause of action was without notice applied to the admission of another cause of action, or, which is the same thing, his liability doubled on the same cause of action. Authorities to this point are numerous. Amendments of declarations are only allowed after judgment by default, on condition of opening the judgment and giving time to plead. 2 Pen. 512.
Where a verdict is found for an amount exceeding the damages claimed in the declaration, the plaintiff will not be permitted to amend his declaration by enlarging the damages unless he abandons his verdict, pays the cost of the trial, and consents to a new trial. 3 Wend. 356.
The court will not amend the declaration where the damages found exceed the amount claimed unless the plaintiff consents to a new trial. 4 Yeates, 1; 1 Hall, 115.
When a party is permitted to amend his pleadings after a verdict, a trial de novo must be allowed. 4 Yerg. 165. The reason, we think, is still stronger why he should not, except under the rule, be permitted to amend after an interlocutory judgment.
An interlocutory judgment obtained on a state of facts presented in the pleadings is made the groundwork of a final judgment, obtained on a different state of facts presented by the pleadings. This is too unjust to be legal.
But amendments are never allowed without notice where the opposite party is put in a worse situation. 2 Tenn. 54. In this case the defendant was put in a worse situation, for, by the amendment, his liability was increased $1,000. See 1 Tidd Pr. 513, 514.
Reid and A. Ewing for defendant.
In this case the defendant in error brought his action of covenant to the September term, 1845, of the circuit court of Davidson county, against the plaintiff in error, laying the damages in his writ at $1,000. At the September term, 1846, the defendant failing to plead, the plaintiff, on the 16th of September, took judgment by default, and an enquiry of damages was awarded.
On the 20th of September, at the same term, the plaintiff moved for leave to amend his writ by making his damages $2,000 which was granted by the court. At May term, 1847,...
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Davis v. Mitchell
...on Judgments, Vol. 3, Sec. 1289; see also, Vol. 1, Sec. 342, page 697; 31 Am.Jur. 129, 130. As was observed by the court in Fowlkes v. Webber, 27 Tenn. 530, in a somewhat different connection, "a defendant, is supposed to be in court, after the service of the writ, until the final judgment ......
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Davis v. Mitchell
... ... Vol. 3, Sec. 1289; see also, Vol. 1, Sec. 342, page 697; 31 ... Am.Jur. 129, 130. As was observed by the court in Fowlkes ... v. Webber, 27 Tenn. 530, in a somewhat different ... connection, 'a defendant, is supposed to be in court, ... after the service of the writ, ... ...
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Darty v. Darty
...is supposed to be in court, after the service of the writ, until the final judgment without entering his appearance.' See Fowlkes v. Webber, 27 Tenn. 530. There a default judgment was entered on a writ for $1,000.00 damages. At a subsequent term plaintiff on motion was allowed to amend so a......
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Darty v. Darty
...is supposed to be in court, after the service of the writ, until the final judgment without entering his appearance.' See Fowlkes v. Webber, 27 Tenn. 530. There default judgment was entered on a writ for $1,000.00 damages. At a subsequent term plaintiff on motion was allowed to amend so as ......