Windross v. McKillop

BáRdeen, J. Sec. 3161, R. S. 1878, as amended by ch. 303, Laws of 1891, provides that the amount adjudged to be due in any judgment for the foreclosure of a mortgage shall draw interest at the rate provided to be paid, on the mortgage debt, but shall not exceed the minimum legal rate of interest. Sec. 1688, R. S. 1878, as amended by ch. 61, Laws of 1893, fixes the minimum rate of interest at six per cent. It was therefore error for the plaintiff to 'include any greater rate of interest in the judgment than six per cent. It was error, however, which the trial court would have corrected on mere suggestion, had its attention been called to it, and •would thus have saved all parties the expense of an appeal to this court. The failure to do so leaves the appeal without merit. Rule XXXII of this court, however, requires us to reverse the judgment. By the Court.— That portion of the judgment requiring eight per cent, interest on the amount found due is reversed, and the cause is remanded to the circuit court with directions to so modify the judgment as to bear interest at the legal rate. No costs will be allowed except that respondent must pay the fees of the clerk of this court. The remainder of the judgment is affirmed.