Higgs v. Hunt

This cause is here on the appeal of defendants from a judgment of the Jackson county circuit *107court rendered in a suit instituted therein on the following obligation, viz:

“ We, the undersigned, do hereby agree to save R. E. Higgs harmless in the sum of $180 as bondsman in the-case of G. P. Schmidt against The Kansas Midland Rail-road, the above being the amount of judgment a'nd costs.”

R. H. Hunt.

L. K. Thatcher.

Yarious errors are assigned, but the only one which counsel for defendants have deemed of sufficient importance to call our attention to in his brief, is as to the action of the court in refusing to sustain their motion for a new' trial on the ground that the judgment was in excess of the» amount claimed in the petition, the amount claimed being' $180, and the judgment being for $187.80.

Under the authority of the case of Beckwith v. Boyce, 12 Mo. 440, error was committed in overruling the motion for new trial. As plaintiff, however, enters a remittitur for $7.80, the excess in the judgment, the error is cured and obviates the necessity which would otherwise exist for reversing the judgment, which is in all respects affirmed except as to said sum of $7.80.

Inasmuch as defendants have been compelled to come to this court for the correction of this error, the plaintiff’ will be required to pay the costs of this appeal, which are hereby adjudged against him. Miller v. Hardin, 64 Mo. 545.