Burke v. Carruthers

By the Court, Currey, C. J.: This is an action of forcible entry and unlawful detainer. The complaint, which was duly verified, set forth by proper allegations the plaintiff’s cause of action. The defendants answered separately. Upon the issue joined the parties proceeded to trial before the Court, and a finding and judgment were rendered in plaintiff’s favor. The appeal is from the judgment, and all that is presented by the record for review arises upon the judgment roll alone. Most of the material allegations of the complaint stand confessed, because the answers fail to controvert them. (Fish v. Redington, ante, 185.) The only matters upon which issue was joined were decided by the Court in favor of the plaintiff against the defendants, and we are unable to discover from the record any ground that would justify a reversal of the judgment.

Judgment affirmed.

By the Court, Currey, C. J., on petition for rehearing: On petition for rehearing. The appellants made the point in their brief that the judgment for damages was erroneous, because it provided that it should bear interest from' the time it was entered until paid. We made no reference to this question in the opinion heretofore rendered, because we regarded it as. palpably untenable. On petition for a rehearing the appellants’ counsel asks if this Court means to decide that the judgment in this respect is correct, and to overrule Osborn v. Hendrickson ? saying that it is important for the profession to be informed upon the subject. To the first branch of the question we answer in the affirmative, and to the second in the negative.

The first section of the Act to regulate interest on money provides that when there is no contract in writing fixing a different rate of interest, interest shall be allowed at the rate of ten per cent per annum : First—for all moneys after they become due on any bond, bill, promissory note or other instrument of writing; second—on any judgment recovered before any Court in this State; third—for money lent; fourth—for money due on the settlement of accounts, from the day on which the balance is ascertained ; and fifth—for money received to the use of another. (Laws 1850, p. 92.) The Act is silent as to the rate of interest which the judgment shall bear, except that when rendered on a contract in writing which in itself provides for a certain rate of interest on money due or to become due on a contract, the judgment shall conform to the contract, and shall bear the interest agreed upon by the parties, which shall be specified in the judgment. In this case the Court ordered and adjudged that the plaintiff have and recover of and from the defendants a certain sum as damages, “ with interest at the rate of ten per cent per annum from the date hereof until paid.” This specification of the rate of the interest which the plaintiff should have and recover of the defendants is by fair construction a specification of the rate of interest which the judgment for damages should bear,