Anderson v. Kerr , 10 Iowa 233 ( 1859 )

Woodward, J.

The first assignment of error is that there was not sufficient service to give jurisdiction over the person. It would certainly be more correct for the sheriff to say he read the notice to the defendant, instead of merely saying that he read it in his presence and hearing. But the defect is remedied when the defendant demanded a copy, which the sheriff, in his return, says he did, and that it was given.

The second assignment is answered by the case of McCaffree v. Guesford, 1 Iowa 80, which holds that, though the petition is not filed at the time named in the notice, it is sufficient if filed ten days before the commencement of the term.

The third assignment is that the judgment is rendered for a greater sum than the plaintiff demands. He asks judgment for the sum of $1292.59 and interest. Judgment was rendered for $1308.10. The petition, in the essential parts, is almost precisely like that in Butcher v. Brand, 6 Iowa 235. Under that decision and Haven Buck v. Baldwin, 5 Iowa 503, the plaintiff is entitled to interest from the commencement of the suit, but not before that. This would have given him as much as the judgment was rendered for. But the plaintiff in this court remits the sum of $6.28, asking an affirmance for $1301.82. This he is entitled to, and judgment will be rendered in this court for the sum of $1301.82 and costs.