Montgomery v. Hanover Nat. Bank

• Decision Date: 28 October 1901
• Citation: 79 Miss. 443,30 So. 635
• Court: Mississippi Supreme Court
• Parties: WILLIAM E. MONTGOMERY v. HANOVER NATIONAL BANK

30 So. 635

79 Miss. 443

WILLIAM E. MONTGOMERY v. HANOVER NATIONAL BANK

Supreme Court of Mississippi

October 28, 1901

FROM the circuit court of Washington county. HON. FRANK A MONTGOMERY, Judge.

The Hanover National Bank, appellee, was plaintiff in the court below; Montgomery, appellant, was defendant there. From a judgment in plaintiff's favor defendant appealed to the supreme court. The plaintiff's declaration alleged that on December 12, 1892, it recovered a judgment against Montgomery, the defendant, for the sum of $ 600, with eight per centum interest, in the circuit court, of Washington county, Mississippi, said judgment being rendered in case No 8210 on the docket of said court, "as will fully appear by a copy of the proceedings and judgment in said suit, which are filed herewith as an exhibit to this declaration, and which said judgment still remains in full force and effect not reversed, satisfied, or otherwise vacated. Wherefore an action has accrued to plaintiff to demand and have of and from said defendant the said sum of $ 600, with interest thereon at the rate of eight per centum per annum from December 12, 1892. Defendant fails to pay," etc "to the damage of said plaintiff $ 1,000. " A transcript of the proceedings and judgment of December 12 1892, sued on, is annexed to the declaration, and was filed with and as a part of it, and showed that in the case described a judgment by consent was rendered for the plaintiff for $ 1,200, with eight per centum interest from that date until paid. In this case defendant was properly summoned, and a judgment by default was rendered against him for $ 1,872. Appellant contended, inter alia, that the judgment should be reversed because the judgment was for a larger amount than claimed in the ad damnum clause in the declaration.

Affirmed.

Moore & Clark, for appellant.

The declaration seeks to recover upon a judgment for $ 600, and if we be mistaken in the position there was no judgment or copy of judgment whatsoever filed with the declaration, still the judgment rendered in this case was erroneous, because the suit being for the recovery on a judgment for $ 600, there is a fatal variance between the statement of the declaration and the proof made by the plaintiff. The suit is for $ 600 only. There is no judgment for $ 600 filed with the declaration, but the record found among the papers discloses a judgment for $ 1,200, and upon this record in a suit for $ 600, the court enters a judgment for something over $ 1,800, being an amount largely in excess of any possible recovery if the record had been in proper shape and the proper evidence had been introduced to sustain the claim made by the declaration.

The proofs must correspond with the allegations in the pleadings and the suit having been brought for $ 600, no amendment having been asked for, no proofs having been introduced of any judgment for $ 600, a judgment for a larger amount, or indeed for any amount whatsoever, would be erroneous if not void. Wilson v. Railroad Co., 77 Miss. 714; Cox v. Kyle, 75 Miss. 667.

The recovery for the plaintiff must be confined to the allegations of his pleadings, and he cannot be permitted to ask for relief or the recovery of one judgment for $ 600, and in that state of the pleadings without any amendment having been asked for, recover a judgment for three times that amount.

Green & Green, for appellee.

Under the provisions of code 1892, §§ 676, 677, the transcript of the judgment of 1892, upon which this action was based, became a part and parcel of the declaration filed in this case, and shall be so considered for all purposes of the action. Hamer v. Rigby, 65 Miss. 44; Insurance Co. v. Holmes, 75 Miss. 401.

When, as here, the pleader makes averments which are repugnant to the terms of the instrument on which the action is based and that instrument is a part of that pleading as an exhibit, then the exhibit will control. Mortgage Co. v. McManus, 68 Ark. 263.

It is well settled that when the allegations in a pleading vary from the provisions of the instrument upon which it is founded, the provisions of such instrument control, and such allegations will be disregarded. Stengle v. Boyce, 143 Ind. 642, 646, and authorities cited; Reynolds v. Louisville, etc., R'y Co., 143 Ind. 579, 621; Avery v. Dougherty, 102 Ind. 143; Hinds v. Driver, 100 Ind. 315, 317, and cases cited; Deposit Co. v. Lackey, 149 Ind. 14; Ass'n v. Plank., 152 Ind. 198; Wagner v. Maynard, 64 Ill.App. 244.

And we find authority where this rule has been applied in cases similar to the one at bar. Page v. Carson, 16 S.W. (Tex.), 1036 (6 Ann. Gen. Dig., 1171).

Judgment for the true amount on a note may be rendered notwithstanding an erroneous allegation of the amount in the petition, when other parts thereof clearly show the true amount. In Sanders v. Bank, 12 S.W. (Tex.), 110 (5 Ann. Gen. Dig., 1265) it is said: "Where a...