
    Anderson v. Kerr & Lacy.
    1. Variance. A variance in the amount claimed between the original notice and a petition is not sufficient cause for reversing a judgment when it is shown that the defendant was not prejudiced thereby.
    2. Juegment. where the petition prays for judgment for the principal due on a promissory note and for interest, interest should be computed only from the commencement of the action,-
    3. Remittitur. When the judgment below is excessive, the Supreme Court may, on the filing of a remittitur, render judgment for the amount actually due.
    
      Appeal from Fayette District Court.
    
    Monday, December 26.
    
      ActioN on a promissory note. The defendants made default. Judgment for plaintiff, and defendants appeal.
    
      McGlinfocJc for the appellant.
    
      Ainsworth and McCflathery for the appellee.
   Woodwaed, J.

In the assignment of errors, it is objected first, that the service is not sufficient to give jurisdiction. An attachment also was sued out, and it is objected that neither did this confer jurisdiction. The defendants point out no defect in the service of the original notice, and none is perceived by us. It appears to be unacceptionable.

The third error assigned is that the petition and notice differ in the amount claimed, the former calling for $382.61, and the latter for $385.65: This is not sufficient to reverse. The cause of action is the same, and there is scarcely a possibility of the defendant being injured by the small variance in the amount claimed.

The fourth assignment is answered under the first and second.

The fifth is the rendering judgment for a larger amount then was claimed, and larger than the plaintiff was entitled to under the evidence. The petition asks a judgment for $382.61, and interest, while judgment was rendered for $555.00, being the whole amount due on the note, including interest from date. Under this petition the plaintiff was entitled to interest only from the commencement of the action, which would give a judgment for $894.71. The plaintiff now comes into this court and confesses the error and remits the excess, and prays judgment for $892.17. Being entitled, under his petition, to this and a little more, judgment will be rendered in this court for the last named sum. The costs to be taxed to the plaintiff.  