Paine v. Gill , 42 Miss. 98 ( 1868 )

Jeffords, J.,

delivered the opinion of the court.

There are two assignments of error.

1. That the note upon which judgment was rendered in the court below, bears interest at the rate of 12£ per cent per annum, and it was error to give judgment in any sum in excess of the legal interest allowed by law.

2. That’the judgment specified in the record, 512-^ dollars, is not the amount with interest at the rate of 12J per cent per annum from the date of the original note, but greatly in excess of the true sum.

It appears from the record, that the defendant in the Circuit Court was duly served with process. Having had his day in court, without making his defence, it is now too late. Had he then come forward and made the objection which he now seeks to raise, the defendants could have rebated the excess, and taken judgment for the legal rate of interest. Having failed to do so at the proper time and place, he has no right to come now and ask this court to correct that which was the result of his own default.

The second assignment is disposed of by the 25th rule of this court, which requires that “when a party relies on an excess .'in the calculation of interest or damages, as a reason for reversing a judgment, a true calculation shall be presented to the court, in writing and figures, with a certificate by some counsellor, not interested in the cause, that the calculation is correct; and no such error will be noticed unless so presented to the court.” No such certificate has been presented. We decline, therefore, to examine the second assignment at all.

Judgment affirmed.