Opinion
1813.
Where the finding in the Circuit Court in favor of the plaintiff is larger than was recovered in the inferior tribunal, and the excess is produced by the calculation of interest, the appellee must take judgment for the amount thus found, or release down to the former judgment, and have twelve and one-half per cent. interest thereon. [See Code 3162 and 1865, 2d Sess. 17. And see Ellison v. German, 1 Tenn., 173.]
Whiteside, for the appellant.
Dickinson, Cooke, and Hayes, for the appellee.
This was an action of assumpsit brought by the appellee against the appellant in the County Court of Davidson, wherein he recovered a judgment for twenty-two hundred dollars. Erwin appealed to the Circuit Court, and upon the cause being there tried the jury rendered a verdict for twenty-six hundred dollars. Waggoman moved the Court to enter up a judgment against Erwin for the amount of the last-mentioned verdict, together with twelve and a half per cent. on twenty-two hundred dollars, part thereof, it being the amount of the County Court. To this Erwin objected, upon the ground that the excess of the verdict in the Circuit Court over twenty-two hundred dollars had been produced by the calculation of interest upon Waggoman's account. The fact was admitted to be so by the counsel for Waggoman, but the Circuit Court entered up a judgment agreeable to the motion. Erwin took a bill of exceptions to the opinion, and the question was removed to this Court by way of appeal.
The Circuit Court erred in allowing the twelve and a half per cent. The proper course to have been pursued would have been for the appellee to have taken a judgment for the amount of what he recovered in the Circuit Court without any interest, or to have released down to the sum he recovered in the County Court and take a judgment for that amount with the twelve and a half per cent. This rule, however, only applies to those cases where the excess is produced by a calculation of the interest on the plaintiff's account. The Legislature did not intend that the party should have eighteen and a half per cent.
The judgment must therefore be reversed.