Powell v. Bierman

• Decision Date: 07 January 1930
• Docket Number: No. 20777.,20777.
• Parties: POWELL v. BIERMAN.
• Court: Missouri Court of Appeals

22 S.W.2d 854

POWELL v. BIERMAN.

No. 20777.

St. Louis Court of Appeals. Missouri.

January 7, 1930.

Error to St. Louis Circuit Court; H. A. Hamilton, Judge.

"Not to be officially published."

Action by E. R. Powell against Paul J. Bierman. Judgment for plaintiff, and defendant brings error. Reversed and remanded.

Greensfelder, Rosenberger & Grand, of St. Louis, for plaintiff in error.

John B. Denvir, Jr., of St. Louis, for defendant in error.

BECKER, J.

This is an action on a promissory note executed by defendant, payable to the order of plaintiff, dated March 26, 1923, for the sum of $5,000, payable one year after date, with interest from date at the rate of 4 per cent. per annum, simple interest. The opinion of this court in this case on its former appeal is reported in 296 S. W. 247, wherein the order of the circuit court granting a new trial was affirmed and the cause remanded. Thereafter the defendant, having filed an amended answer and counterclaim, setting up failure of consideration and fraud in the procurement of the note in suit as a defense, the case was tried anew, resulting in a verdict in favor of plaintiff for the full amount of the note sued on, $5,000, but allowing no interest, and against the defendant on both counts of his counterclaim. Defendant thereupon filed his motion for a new trial and in arrest of judgment, and the plaintiff filed a motion to modify the judgment, so as to include interest on the note sued upon. The trial court thereafter overruled defendant's motion for a new trial and in arrest of judgment, and sustained plaintiff's motion to modify the judgment and added $750 as an item of interest, to the verdict as rendered by the jury, entering a judgment for $5,750 in favor of plaintiff and against the defendant. Defendant, after duly perfecting his appeal to this court, voluntarily dismissed the same, and sued out this writ of error.

The assignments of error in the case make it unnecessary for us to review the evidence. The action of the trial court in sustaining plaintiff's motion to modify the judgment is assigned as error. Said motion set up therein, as grounds for modification of the judgment, that the verdict of the jury shows on its face that it was the intention of the jury to allow plaintiff interest in the case; and, second, because the said verdict contains data from which interest can be calculated with certainty and precision.

Our examination of the verdict shows that it contains nothing on its face to indicate that it was the intention of the jury to allow plaintiff interest in the cause, nor does it contain any data, as alleged in the motion, from which interest could be calculated. However, it is no longer open to question but that a trial court has no power to modify a judgment and add interest to a jury's verdict, after the verdict has been received and accepted by the court without objection on the part of plaintiff. It has been held repeatedly that the right of a court to amend the verdict after the discharge of the jury is limited to matters of form, or clerical errors clearly made manifest by the record, but never to matters of substance, required to be passed on by the jury, which in their nature are essential to the determination of the case and subject to dispute. If, therefore, any correction of a verdict is to be made, except as to matters of form, it must be done by...