Kent v. Bown

By the Court — Flandrau, J. This action was upon a promis [350] sory note, drawing no interest before, but five per cent, per month after maturity, and the Defendant put in an answer, to what effect does not appear, nor is it material. On the 15th day of March, 1859, at a general term of the District Court of B,amsey County, the “case came on to be tried, and thereupon the Defendant withdrew the answer in said cause, and thereupon submitted the same to the Court for assessment of damages, upon the complaint, and the Defendant then and there objected to the Court rendering judgment, or assessing the damages for any greater sum than the amount set forth in the promissory note, and interest thereon after maturity at seven per cent, per annum.” It also appears from the record that the Judge “overruled said objections, and directed judgment to be entered upon said complaint for the amount specified in said note, and interest thereon after maturity at five per cent, per month, up to the time of the rendition of judgment.” To all of which, exceptions were taken by the Defendant. Judgment was entered in pursuance of the ruling of the Judge, and the Defendant brings error to this Court. It is objected that an application should have been made to the Court below to correct the assessment of damages, before taking the case to this Court, under the ruling in the case of Babcock and Hollinshead vs. Sanborn and French, and kindred cases decided by this Court, as the withdrawal of the Defendant’s answer placed the case in the condition it would have occupied had none been interposed, and made the Clerk the proper officer to assess the damages and enter the judgment. This is, however, an incorrect view of the practice. There was no default. The Defendant had appeared and answered, and the cause was on the calendar ready for trial; when reached, the Defendant abandoned the issue he had formed, and simply contested the question of the amount of damages. The Court had a right, perhaps, to treat the case as if no answer had been put in, and send it to the Clerk for judgment as for want of an answer, yet he certainly had the power to determine the question himself when requested to do so by the parties. Any question of damages, costs, or otherwise, that belongs to the Clerk to determine, may in the first [351] instance be submitted to the Judge, and Ms decision will stand as an order on an appeal from the Clerk, and as such, may be taken to this Court, either directly by an appeal from the order when it is appealable, or by bringing up the judgment which includes it. Andrews vs. Cressy, 2 Minn. Rep., 67. Where the question is brought directly to the attention of the Judge, and actually ruled upon by Mm, as was the case at bar, it would be idle to go through the forms of a motion to him for a still further ruling before bringing it to this Court, and we never have decided such form to be necessary. Our holding has been, and now is, that we will not review mere questions of damages and costs, which the Court below has not actually decided, where that Court has ample power to grant the relief asked. It would be unjust to hold a Judge responsible for a decision which he has never in fact made, and equally unjust to allow suitors to be brought into this Court on such questions when the Court below can afford them a cheaper and more expeditious remedy. Hawke et al. vs. Banning & Bucknell, decided at the July Term of 1859. The question of damages is properly here. The Court erred in allowing the -Defendant to recover the five per cent per month after the maturity of the note. That sum was inserted as a penalty, to secure the payment of the principal punctually at maturity. Mason, Craig et al. vs. Callendar, Flint & Co., 2 Min. R., p. 350. As there was no interest stipulated in the note, the damages on the default of the maker to pay it at maturity, must be governed by See. 2, Chap. 30, new ed. Stat., which would fix it at seven per centum per annum under the reasoning of the Court in Mason, Craig et al. vs. Calendar, Flint & Co., and Talcott vs. Marston, argued at this term. The Plaintiff in Error makes a question on the amount of costs allowed below, but as the record does not show that it was passed upon by the Judge, we decline deciding it. The damages should have been for the amount of the note, with seven per centum per annum interest on that amount from the date of the maturity of the note until judgment; we modify the judgment by striking out the excess, and approve it as to balance.