Bank of Commerce v. Smith

Mitchell, J. This action was brought against Smith as maker, and two other as guarantors of the payment, of a promissory note'. Each of the defendants interposed a separate answer, consisting Mn effect of a general denial. The cause was tried upon the issues between plaintiff and Smith, and a verdict rendered for the plaintiff, leaving the issues between plaintiff and the other defendants undisposed of. Judgment was rendered against Smith upon the •/verdict. The verdict was for a few dollars more than the amount claimed in the complaint. Without having made any motion for a new trial, or otherwise calling the attention of the trial court to this alleged excess in the amount of the verdict, Smith appeals from the judgment. Whatever vacillation or uncertainty on the subject there may have been in the earlier decisions of this court, its uniform and inflexible rule, for many years, has been that where the error or mistake is not that of the court itself, but of the jury or the clerk, application must be made, in the first instance, to the trial court to correct it. This has been held in cases where the verdict was claimed not to be justified by the evidence; also, where the judgment entered by the clerk was not in accordance with the verdict or findings. The propriety of this rule is very apparent, because, presumably, if the trial court’s attention was called to the matter, it would correct the error; and to allow a party to raise these questions on appeal to this court, without first applying to the trial court, would be to allow him to omit to resort to a very speedy and inexpensive remedy, which is very much in the nature of an intermediate appeal. The evidence is not returned, and hence we do not know how the amount of the verdict was arrived at. Very probably the jury may have made a mistake in computing interest on the note. If so, the trial court would’, on proper application, have corrected it by requiring the plaintiff to remit the excess. The point is not available on this appeal. [377] There is nothing in the point that it was error to enter a several judgment against the appellant. It was a case where a several judgment, was entirely proper. Plaintiff might have sued appellant separately, and the fact that he elected to sue all the defendants in one action did not preclude him from taking a several judgment against appellant without waiting the determination of the issues as to the other defendants. It is not necessary to decide whether this could have been done without leave of the court, had all the defendants borne the same relation to the note, and been jointly and severally liable. The relations of the maker and guarantor to a note are entirely different, their agreements being entirely separate and independent, and it is only by virtue of statute that they can be included in the same action. Hammel v. Beardsley, 31 Minn. 314, (17 N. W. 858.) Judgment affirmed. Buck, J., absent, sick, took no part. (Opinion published 59 N. W. 311.)