Blum v. Edelstein ( 1905 )

Gunter, J.

The complaint contained two causes of action. One for money had and received by appellant to the use of appellee. The other for money had and received by appellant to the use of a third party, which claim against appellant had, prior to the institution of this action, been assigned to appellee. There was a verdict for appellee upon both causes of action, the verdict being for a sum largely in excess of the amount claimed on the second cause of action, but less than the aggregate amount- claimed upon the two causes of action. Upon the hearing of the motion' for a new trial the court found that there was an absence of evidence to sustain the second cause of action. Thereupon appellee entered a remittitur in' an amount equal to the sum sought to be recovered on the second cause of action. In other words, appellee» thereby cured all possible effect of the error of the jury in allowing any sum on the second cause of action. Thereupon the court entered judgment for the plaintiff on the first cause of action for the difference between the sum thus remitted and the amount of the verdict.

It is said that in this action the court committed error.

The only prejudicial error committed against appellant in tlie trial was the return of a verdict upon the second cause of action. As all effects of this error were cured by the remittitur entered, the court committed no error in thereupon entering judgment upon the first cause of action for the remainder. Its judgment should be affirmed.

Affirmed.