Gage v. Rogers

Norton, J. delivered the opinion of the Court—Field, C. J. concurring. This is an action to foreclose a mortgage given to secure the payment of a note for $3,000, with interest at two and one-half per cent, a month, to be compounded if default was made in payment of the monthly interest. The complaint was filed on the thirteenth day of November, 1861, at which time the principal and interest due amounted to the sum of $4,968.70, and the complaint prays for a judgment for that sum, and that the judgment bear interest ,at 92 the same rate. A default having been entered, for want of an answer, a judgment was entered on the fourteenth day of January, 1862, for the sum of $4,968, with interest thereon at the rate of two and one-half per cent, a month from the said thirteenth day of November, 186L From this judgment an appeal is taken, and the error assigned is, thgt by adjudging interest to run on the judgment from November 18th, 1861, the day the complaint was filed, instead of from January 14th, 1862, the day of entering judgment, the relief granted exceeded that which was demanded in the complaint, contrary to the provision of section one hundred and forty-seven of the Civil Practice Act. The error has arisen from a slight inadvertence in demanding a judgment for the precise sum due, including interest, at the time of filing the complaint, and not asking interest from that time until the entry of the judgment, but only that the judgment shall bear interest. ' Although the difference between the sum recovered and that to which the party was entitled under a prayer properly framed is not large, yet strictly the judgment was erroneous under the operation of section one hundred and forty-seven. The judgment appealed from is therefore modified so as to adjudge interest on the sum recovered, to wit: the sum of $4,968, to run at the rate of two and one-half per cent, a month from the date of the judgment, instead of from the thirteenth day of November, 1861; and the cause is remanded for further proceedings, with costs of this appeal to the appellant.