Kenyon v. Woodward

Graves J. This is a writ of error to the Circuit Court for the county of Kalamazoo; and according to the return to the writ the suit was commenced by attachment- in the court below, on the 18th day of April, 1863, for a demand as sworn to in the affidavit on which the writ issued, of five hundred and thirty-one dollars and seventeen cents: That on the 27th day of May following, the plaintiff below filed his declaration, containing the general counts for work and materials, and goods sold and delivered, and the 'common money counts, and alleged his damages to be five hundred dollars, and set forth under the usual notice to give it in evidence, the copy of a note dated February 1, 1858, for $349.23, made by the plaintiff in error, and payable to Holmes & Co., or bearer, one day after date, with interest, at ten per centum per annum: That the plaintiff in error, on the 27th day of June, 1863, pleaded the general issue, accompanied by the usual notice that he would set off, on the trial, an indebtedness from the defendant in error to him of one thousand dollars : That on the first day of May, 1865, the defendant in error demanded a jury: That on the 9th day of the same month, a verdict was rendered in favor of the defendant in error for six hundred and three dollars and twenty-five cents, and judgment for that amount entered on the verdict the day after. [331] It is shown, to us that, on the 22nd day of May, 1867, and after the writ of error was issued, but before the return or return day thereof, the court below, on the motion of the defendant in error, based on the files and judgment, made an unconditional order allowing an amendment of the declaration nunc pro tunc, so as to raise the damages as laid from five hundred to seven hundred dollars. The only material questions presented by this case arise out of the disagreement in amount between the sum laid as damages in the declaration, and that given by the verdict and judgment; and the subsequent -attempt to cure the error by amendment. That the verdict and judgment, in giving damages beyond the claim of the plaintiff below in his declaration, were erroneous, appears very plain, and seems to be conceded by the effort to alter the allegation of damage. There was never any issue for trial before the jury for any amount above five hundred dollars, and the plaintiff in error had not only the right so to consider it, but was, by correct practice, required to measure his action accordingly; since nothing could properly be tried which was not within the issue. As the plaintiff in error, therefore, has had no regular opportunity to controvert the right of the defendant in error to recover anything beyond five hundred dollars, it is quite apparent that while the verdict and judgment, over that sum were erroneous when given, the error could not be cured by the amendment which was made. The court below had authority to allow the defendant in error to remit all over five hundred dollars, or to allow him to make the amendment sought, on the terms of assenting to a new trial if the plaintiff in error elected to have one. But the plaintiff in error has been compelled to come here, and we think that the judgment for any sum over five hundred dollars cannot be retained against him, while for the balance it ought to be allowed to stand. [332] We are therefore of opinion that the judgment as to all over five hundred dollars must be reversed; and be affirmed as to the residue; and that the plaintiff in error recover his costs in this court. The objection taken to the omission from the record of the regular entry as to the empaneling the jury and proceeding to trial can not be maintained. There is enough in the return to show very clearly that a jury was empaneled and the trial proceeded with, and that the omission from the record was a clerical mistake. This we think is cured by the statute. — 2 Comp. L. §§4417, 4419, 4420. The other justices concurred.