Barker v. McCreary

The opinion of the court was delivered, January 3d 1871, by Agnew, J. — The plaintiff in this case has no right to complain of a trial without a plea. He had a rule on the defendant to plead or judgment, and might have enforced it. This court will not reverse a judgment for want of a plea or a declaration after a trial on the merits: Sauerman v. Weckerly, 17 S. & B.. 116 ; Glenn v. Copeland, 2 W. & S. 261; Bratton v. Mitchell, 5 Watts 69; Long v. Long, 4 Barr 29; Ins. Co. v. Seitz, 4 W. & S. 273. The 2d and 3d assignments of error are more substantial. It may be the jury allowed interest on the plaintiff’s demand, which makes up the difference between the sum for which the justice gave judgment, to wit, $46.62 and $50, the sum found by the jury. But how can we know this ? They may not have done so; and there is no rule, therefore, that can be adopted which 164 will certainly do justice. The plaintiff appealed, and afterwards obtained a greater sum and more favorable judgment than that from which he appealed. He falls therefore within the very terms of the Act of 9th April 1833, and within the express decision in Haines v. Moorhead, 2 Barr 65. To this citation may be added McMaster v. Rupp, 10 Harris 298 ; and King v. Boyles, 7 Casey 424. In the former, the plaintiff appealed from a judgment of seventy cents, and recovered a judgment for eighty-six cents; and in the latter, the plaintiff appealed from an award of no cause of action, and recovered a judgment of ten cents; and in each case the plaintiff was allowed his costs under the Act of 1833. Park v. Sweeney, 3 Wright 111, cited by the defendant in error, is an authority on the other side. It is true that Lowrie, C. J., in that case said that interest must he added to a judgment tendered by the defendant before making his appeal, in order to compare it with the sum actually recovered; but he adds, “ We do not go out of the record to make the comparison, and we could not do so without opening a new field of litigation. The offer was of $50 and interest, for the law adds the interest. We do not speculate about whether the arbitrators added interest after the appeal in making up their award, but simply decide as a matter of law, and of fact, too, that the offer is greater than the award when we bring them together at one date.” But in this case we must necessarily go out of the record to discover whether the jury allowed interest in their verdict. The judgment as to the costs is therefore reversed, and judgment is now given for the plaintiff below for full costs.