
    Joseph Daniels et al., Plaintiffs in Error, vs. William B. Allen, Defendant in Error.
    ERROR TO DISTRICT COURT OR RAMSEY COUNTY.
    
      See Babcock & Hollinshead vs. Sanborn & French, 3 Minn. 141.
    Daniels & Grant, Counsel for Plaintiffs in Error.
    Henry Hale, Counsel for Defendants in Error.
   Elandrau, J.

By the Cowrt The question presented in this case is one where judgment was recovered upon a note containing a clause that it should draw five per cent, per month after maturity, and the damages were assessed at the rate stipulated. No objection was made to the assessment by the Defendants, or either of them, although they all appeared in the suit. Under the case of Babcock & Hollinshead sv. Sanborn & French, 3 Minnesota, 141, and the many cases which we have since decided upon the same principle, there is nothing here for us to review. If the court made an erroneous assessment of damages, it did so under the impression that as the parties did not object they meant to stand to their stipulation, which they had a right to do. If they did not so intend, they should have applied to the court below to order a reassessment.

The judgment is affirmed, but without prejudice to an application being made to the court below for the relief sought here. Case remanded.

Chief Justice Emmett dissents from the foregoing opinion.  