Porter v. . Grimsley

Davis, J., (after stating the case). The defendant may demur: 1. When the Court has no jurisdiction of the person of the defendant, or of the subject of the action; or, 2. That the plaintiff has not legal capacity to sue; or, 3. That there is another action pending between the same parties for the same cause; or, 4. That there is a defect of parties, plaintiff or defendant; or, 5. That several causes of action have been improperly joined; or, *552 6. That the complaint does not state facts sufficient to constitute a cause of action. No one of these grounds of demurrer can be found in the complaint, and the demurrer was properly overruled as frivolous. But the defendant says that the complaint does not show when the demand was made, and that the judgment is erroneous, in that it gave interest from the 15th day of April, 1885. It is conceded that interest can be charged only from demand, and in Hyman v. Gray, 4 Jones, 155, cited by counsel for defendant, a new trial was granted because this Court was unable to enter judgment for the proper amount; but in Neal v. Freeman, 85 N. C., 441, in which it did not appear when the demand was made, and, therefore, when interest commenced, the Court said: “As the sum allowed as interest was distinguished, in the judgment rendered, from the principal sum due, it is not necessary that we should direct a new trial, as the correction can be made here.” It was accordingly adjudged that the plaintiff recover the principal sum, “with interest from the date of the summons, and that the clerk make the correction,” &c. In this case the counsel for the plaintiff expresses his willingness to the correction of the judgment, in conformity to this decision, and the clerk will make the correction, and the judgment in favor of the plaintiff will be for $800, with interest from the date of the summons. If the attention of the Court below had been directed to the matter the modification would, no doubt, have been made then, and as it was not done, the appellant (defendant) will be taxed with the cost. Modified and affirmed.