
    B. Oppenheimer & Co. v. F. S. Fritter.
    (No. 3683.)
    Error from Kinney County.
    
      (Transferred from, Austin. J
    
    Ellis & Dial, counsel for plaintiffs in error.
    No counsel appeared for defendant in error.
   Opinion by

White, P. J.

§ 263. Jurisdiction of county court as to amount; allegation of damage in petition in suit on note held surplusage; case stated. Oppenheimer & Co. sued Fritter upon a promissory note for $413.15, The petition is in the ordinary form, except that it alleges damages in the sum of $1,000 for failure to pay the debt sued for. Fritter pleaded to the jurisdiction of the court upon the ground that the amount of the note sued for, and the damages claimed, exceeded the jurisdiction of the court. This plea was sustained and the suit was dismissed. Held error. In cases of failure to pay money which is due, the true measure of damages is the amount of money owing, with interest at the legal rate, and as a general rule more than this cannot be allowed. [Vennum v. Gregory, 21 Iowa, 326; Guy v. Franklin, 5 Cal. 416; Thayer v. Hedges, 21 Ind. 141.] This suit being upon a promissory note, it is manifest the plaintiff could recover no more than legal interest as damages, and in fact his suit is brought to recover no more than the principal and interest of the debt. The ad damnum allegation in the petition claiming $1,000 damages is surplusage, and should have been so treated. The real amount in controversy was the debt and interest thereon, and of this amount the court had jurisdiction.

February 16, 1887.

Reversed and remanded.  