Opinion
(December Term, 1848.)
Where more damages are recovered than are demanded, the plaintiff will be permitted to remit the excess and have judgment for the proper sum, on paying the costs of this Court.
APPEAL from the Superior Court of Law of DUPLIN, at Spring Term, 1848, Dick, J., presiding.
Strange for plaintiff.
D. Reid for defendant.
The case began by warrant before a justice of the peace for "the sum of $12 due by assumpsit." Upon nonassumpsit, the verdict for the plaintiff and the damages assessed to $12 for principal money and for interest $1.50; and from a judgment accordingly the defendant appealed.
The defendant excepted to the instructions to the jury, but it is not material to state the point, as his counsel abandoned it here, and moved to reverse the judgment because there was an excess of damages recovered above those demanded. On the part of the plaintiff there is a motion to remit the excess and to have judgment for the residue.
Williamson v. Canady, 25 N.C. 343, is in point for the plaintiff, on the payment of costs in this Court. Besides the reason there given, it is substantially doing only what the court would be bound to do on the motion of the defendant. For, if damages be improperly assessed, as, for (45) example, in a popular action, the judgment may be rightly rendered for the penalty without the damages; and, if rendered for both debt and damages, upon error brought, the judgment is not reversed in toto and judgment arrested for the incongruity between the declaration and the verdict, but it is reversed as to the damages only, with costs in the court of error, and affirmed for the debt and the costs in the court below. Frederick v. Lookup, Burr., 2018. The reason is that the higher court is to give such judgment as, upon the whole record, ought to have been given in order to terminate the litigation according to the right apparent between the parties. That is the jurisdiction of this Court under the statute, and therefore the judgment of the Superior Court must be reversed as to the sum of $1.50 assessed for damages above the sum demanded in the warrant, with costs in this Court, and affirmed for the sum of $12, thus demanded, and all the other costs.
PER CURIAM. Judgment accordingly.
Cited: Noville v. Dew, 94 N.C. 46.