11-1-21 - Excess remitted.
§ 11-1-21. Excess remitted.
Where any bond, taken by virtue of any process or order, by miscalculation or mistake, shall be conditioned for the payment of a larger sum of money than by law ought to have been acquired thereby, and a verdict shall have been rendered thereon for the larger sum, or where a verdict shall be rendered for more damages than the plaintiff shall have demanded by his suit, and judgment be rendered accordingly, it shall be lawful for the plaintiff, at the same or any future term of the court, to release in open court any such excess; or he may in vacation release the same, in writing under his hand, and file it among the papers of the cause; and such release shall cure any error growing out of the excess. If the record of any such judgment be removed to an appellate court before the release be made, it shall be competent for the appellee to make such release in the appellate court; and thereupon, the court, after reversing the judgment, shall proceed to give such judgment as the court below ought to have given if the release had been filed therein; but in such case the appellant shall recover the costs paid, and the judgment shall not be entered against the sureties in the appeal bond.
Sources: Codes, Hutchinson's 1848, ch. 61, art. 1 (97, 98); 1857, ch. 61, arts. 187, 188; 1871, §§ 628, 629; 1880, §§ 2299, 2300; 1892, § 941; 1906, § 1017; Hemingway's 1917, § 737; 1930, § 756; 1942, § 1671; Laws, 1978, ch. 335, § 1, eff from and after July 1, 1978.