Richardson v. Baskin , 44 S.W.2d 1067 ( 1931 )

On Appellants’ Second Motion for Rehearing.

On original hearing we overlooked assignment of error complaining of excessiveness of the judgment rendered, and therefore'leave is hereby granted to appellants to file second motion for rehearing.

A correct calculation of the amount due on the note sued on by the plaintiff shows a balance due of $622.15. Therefore, the second motion for rehearing is sustained and the judgment of the trial court is so reformed as to limit the recovery by plaintiff to $622.15, to draw interest at the rate of 10 per cent, per annum from the date of the judgment .of the trial court, to wit, 4th day of October, 1930, together with all costs incurred in the trial court. All costs of appeal are taxed against appellee. And in this connection, we have duly considered the contention made in the appellee’s answer to the motion for rehearing to the effect that the appellee should not be taxed with the costs of appeal, since there was no specific point made in appellants’ motion for new trial in the trial court to the effect that there had been a miscalculation ■ of the amount due on the note sued on; the.assignment in the motion on that point being general to the effect that the court erred in rendering the judgment for the sum of $774.-00. However, it was incumbent upon the ap-pellee as well as upon the appellant to see that the calculation was correctly made.' Furthermore, the excessiveness in the judgment rendered presented fundamental error, since the same was not warranted by the appellee’s pleadings; he having specifically alleged.the terms of the note sued on, which of themselves limited the recovery to $622.15. "And as so reformed the judgment is affirmed. ■