Pacific Express Co. v. Malin

Citations

• 132 U.S. 531
• 10 S. Ct. 166
• 33 L. Ed. 450
• 1889 U.S. LEXIS 1902

Syllabus

<p>Plaintiffs sued defendant in a state court in Texas to recover $5970, the alleged value of goods destroyed by a fire charged to have been caused by defendant’s negligence. Defendant pleaded and excepted to the petition. The cause was then removed to the Circuit Court of the United States on defendant’s motion, who there answered further, pleading the general issue, excepting to the petition among other things for insufficiency and vagueness in the description of the goods, and charging contributory negligence on plaintiffs’ part. Plaintiffs filed an amended petition more precise in statement and reducing the damage claimed to $4650.71. To this defendant answered, again charging contributory negligence and setting up, “ by way of set-off, counterclaim and reconvention,” injuries to himself to the extent of $8000, resulting from plaintiffs’ negligence, for which he asked judgment. Plaintiffs excepted to the cross-demand. On the 6th October, 1888, the cause coming to trial, defendant’s exceptions were overruled, except the one for vagueness, and as to that plaintiffs were allowed to amend; plaintiff^’ exceptions to the counterclaim were sustained; and the jury rendered a verdict for $4300 principal, and $792.15 interest. It appeared by the record that plaintiffs on the same day remitted $435.50, and judgment was entered for $4656.65; but it further appeared that on the 8th October, plaintiffs moyed for leave to remit that amount of the judgment and leave was granted the remittitur to be as of the day of the rendition of the judgment, and the judgment to be for 11656.65 and costs. On the same 8th of October, defendant 'filed a bill of exceptions in the cause “ signed and filed herein and made a part of the record in this cause this 8th day of October, 1888.” On the 9th October, a motion for a new trial was overruled. • On a motion to dismiss the writ of error or to affirm the judgment, Held:</p> <p>(1) That the remittitur was properly made, and that it was within the