Petersen v. Mannix

• Decision Date: 17 April 1902
• Citation: 2 Neb. [Unof.] 795,90 N.W. 210
• Parties: PETERSEN ET AL. v. MANNIX.
• Court: Nebraska Supreme Court

2 Neb. [Unof.] 795

90 N.W. 210

PETERSEN ET AL.

v.MANNIX.

Supreme Court of Nebraska.

April 17, 1902.

Commissioners' opinion. Department No. 2. Error to district court, Pierce county; Allen, Judge.

“Not to be officially reported.”

Action by P. H. Petersen and others against James E. Mannix. Judgment for defendant, and plaintiffs bring error. Affirmed.O. J. Frost, for plaintiffs in error.

G. T. Kelley, for defendant in error.

POUND, C.

This action was brought originally in justice's court to recover $17.80 on an account for job printing, advertising, and subscription to a newspaper, amounting to $5.80, and a further claim for $12, assigned to plaintiffs by one Ella Frost. The defendant offered in writing to confess judgment for $1.50. Two trials were had to a jury in justice's court before a verdict and judgment could be had. Error was then prosecuted to the district court, where the judgment rendered by the justice of the peace was reversed, and the cause retained for trial and again tried to a jury. This trial resulted in a verdict and judgment in plaintiffs' favor for $1.50, from which error is now prosecuted.

The assignments of error chiefly relied on relate to an order of the district court striking certain allegations as to interest out of the petition. The allegations in question set up that 18 cents interest was due upon one item sued on, and 10 cents interest upon another. This sum of 28 cents, which the plaintiffs maintain they were entitled to by way of interest, comes about as near to the “little diachylon,” which, according to Lord Holt, the common law will duly save to parties litigant, as could well be anticipated in a cause tried to three juries and of sufficient interest to the parties to justify bringing to this court. But the constitution has solemnly promised that the right to be heard in the supreme court by error or appeal shall not be denied, and, so long as anything is in controversy, it is our duty to wrestle with the questions of law presented without regard to mere accidents of substance or value. Approaching these assignments of error, therefore, with due gravity and a high sense of the importance of the principle involved, we are of opinion that the rulings complained of were without prejudice. Interest was not claimed by virtue of any contract or agreement to pay it, but by reason of section 4, c. 44, Comp. St. Hence we do not understand that any express allegations that interest was due were required. A plaintiff may recover interest upon debts or claims which, without any contract therefor, bear interest as a matter of law, under sufficient allegations of such debts or claims and prayer for the amount thereof and interest. The recovery cannot exceed the amount prayed for; but, within that sum, it may include interest in such cases without...