
    Brinnaman v. Grover.
    
      Saturday, June 8.
    
    Where a party against whom a judgment has been rendered before a justice of the peace for less than five dollars, appeals to the Circuit or Common Pleas Court, and there obtains a verdict in his favor, he is entitled to recover his costs.
    APPEAL from the Wells Circuit Court.
   Worden, J.

There is uo question in this case, except as to costs.

Grover sued' Brinnaman on an account, before a justice of the peace. Brinnaman filed an account’ as a set-off. On the trial before the justice, judgment was rendered in favor of Brinnaman, the defendant, for one dollar and ninety-six cents. Grover appealed, and in the Circuit Court recovered a verdict and judgment for one dollar and fifty cents, and costs. Brinnaman moved to tax the costs in the Circuit Court to the plaintiff, Grover, but the motion was overruled, and he excepted. The costs amount to $195 and sixteen cents. The entire amount for which Grover sued was only five dollars and seventy-six cents, and the entire amount of Brinnamaris set-off is only twelve dollars and ninety-one cents. The amount of the costs in this case, compared with the trifling amount involved in the litigation, suggests to litigants the eminent propriety of letting such cases rest with the determination of the justice; a tribunal organized in every township for the purpose, among other things, of hearing and determining claims of small amount, and before whom, in such cases, great injustice is seldom if ever committed.

The question as to costs depends upon the construction to be given to § 70 of the Justices’ Act, 2 R. S. 1852, p. 464. It provides, that “ Costs shall follow judgment in the Court of Common Pleas, or Circuit Court, on appeals, with the following exceptions :

First. If either party against whom judgment has been rendered, appeal and reduce the judgment against him five dollars or more, he shall recover his costs in the Court of Common Pleas, or Circuit Court, when the appellant appeared before the justice.

L. M. Mjide, and II. W. Puckett, for the appellant.

M. Jenkinson, for the appellee.

« Second. If either party in whose favor judgment has been rendered, appeal and do not recover at least five dollars more than he recovered before the-justice, the appellee shall recover costs *n Common Pleas or Circuit Court.”

The appellant claims that this case comes within the first class of exceptions, and that although the language there employed is affirmative, yet that the clause contains a negative restriction on the right of the party appealing to recover costs, unless he has réduced the judgment from which he appeals five dollars or more. This construction, we think, can not be adopted. True, if a party appeals from a judgment against him and reduces it five dollars, he shall recover costs, but it does not therefore follow that if he fail to make such reduc tion he shall in no case recover costs. Now, to illustrate, suppose judgment be rendered against a man before a justice for four dollars and ninety-nine cents, from which he appeals, and in the appellate Court he obtains a general verdict, and judgment; in such case it can not be doubted that he is entitled to costs, not because he has reduced the judgment five dollars, for that he could not do, but because he has obtained judgment, and the costs follow by the terms of the law. The construction contended for would, it seems to us, deprive a party of the right to recover costs in all cases where he appealed from a judgment of less than five dollars, although in the appellate Court he obtained a judgment in his favor. In this case, we have seen that before the justice Brinnaman recovered judgment against Grover for a sum less than five dollars. Grover appealed, and in the Circuit Court recovered judgment against Brinnaman. We are of opinion that Grover was entitled to costs; not upon the principle of a reduction of the judgment, but because he recovered judgment.

Per Curiam.

The judgment below is affirmed, with costs.  