Montgomery v. Hanover National Bank

Whitfield, C. J., delivered the opinion of the court. Since the change in our statute law made by §§ 676, 677, code 1892, making the evidence of indebtedness filed as an exhibit with the declaration a part of the record for all purposes of the action, the cases of Potter v. Prescott, 2 How., 686, and Geren v. Wright, 8 Smed. & M., 361, are inapplicable. The ad damnum clause in the declaration will be controlled by the note, and the court will fix the amount of the judgment by it in a case of conflict between them, in cases .like the present. Hamer v. Rigby, 65 Miss., 44 (3 So. Rep., 137); Insurance Co. v. Holmes, 75 Miss., 401 (23 So. Rep., 183); Stengel v. Boyce, 143 Ind., 642 (42 N. E. Rep., 905); House v. Gumble, 78 Miss., 259 (29 So. Rep., 71); 2 Enc. Pl. & Prac., 900 (b); Mortgage Co. v. McManus (1900), 68 Ark., 263 (58 S. W. Rep., 250); and Kennedy v. Young, 25 Ala., 565, the court in the case last cited saying: £ ‘ The demand is on a promissory note, and, upon a default or nil cUcit, it is competent for the court to render judgment without the intervention of a jury, the amount of the note, with the interest which has accrued, being the amount to be recovered. The court will look to this, rather than to the amount of damages laid in the conclusion of the declaration. If interest has been miscalculated, it must be regarded as a clerical misprision, and may be here corrected. There are some old decisions which hold that, when the recovery exceeds the damage laid in the declaration, the judgment is erroneous. See Dinsmore v. Austill, Minor, 89; Flournoy v. Childress, Id., 93; Derrick v. Jones, 1 Stew., 18. But, although we do not find that those decisions are expressly overruled, this court, in cases like this, has frequently departed from them, and, by repeated decisions, has held that, where the principal and interest on a note constitute the sum to be recovered, the court may render judgment for the same, irrespective of the ad damnwn clause in the declaration. See McWhorter v. Standifer, 2 Port., 519; Elliott v. Smith, 1 [447] Ala., 74. The earlier decisions, so far as they apply to cases like the present, must be considered as overruled.” There is no merit in any other contention. Affirmed.