Summary
vacating judgment and remanding for entry of a new judgment "providing for interest on the amount of the judgment at the rate of 9 percent"
Summary of this case from Smith v. JohnsonOpinion
No. 79-11-342, CA A21834
Argued and submitted May 20, 1982
Judgment vacated and remanded with instructions June 16, 1982
Appeal from Circuit Court, Clackamas County.
Winston L. Bradshaw, Judge.
Sid Brockley, Oregon City, argued the cause and filed the briefs for appellants.
Kathryn H. Clarke, Portland, argued the cause for respondent — cross-appellant. With her on the brief was Diane C. Brock, Portland.
Before Buttler, Presiding Judge, and Warren and Rossman, Judges.
PER CURIAM
Judgment vacated and cause remanded for entry of a new judgment providing for interest on the amount of the judgment at the rate of 9 percent per annum from July 10, 1981.
In this action for rental due under a written lease, defendants appeal from a judgment for plaintiff, and plaintiff cross-appeals from that portion of the judgment providing for interest at the rate of 6 percent per annum from the date the judgment was entered. We affirm the judgment for plaintiff, but agree with plaintiff on his cross-appeal that he was entitled interest at the rate of 9 percent per annum as a matter of law. Therefore, we vacate the judgment and remand the case for entry of a new judgment providing for interest at that rate.
The only basis for providing interest at the rate of 6 percent was that in plaintiff's prayer he asked for interest on the judgment at that rate. At the time the judgment was entered, ORS 82.010(3) provided that the rate of interest on judgments and decrees for the payment of money was 9 percent. Because it was unnecessary for plaintiff to pray for interest on the judgment in order to be titled thereto, Gardner v. Meiling, 280 Or. 665, 572 P.2d 1012 (1977), his prayer for 6 percent interest was surplusage. He was entitled to post-judgment interest at the statutory rate as a matter of law.
Accordingly, the judgment is vacated and the case remanded for entry of a new judgment providing for interest on the amount of the judgment at the rate of 9 percent from July 10, 1981.