
    No. 13,840.
    Berry v. The Town of Merom.
    
      Costs. — Action in Circuit Court. — Recovery of Less than Fifty Dollars. — Under the statute (section 5091, R. S. 1881), the plaintiff in an action in the circuit court for a money demand on contract is liable for costs if he recovers less than fifty dollars, exclusive of costs, unless the judgment is reduced'below that amount by set-off or counter-claim.
    From the Sullivan Circuit Court.
    ■ W. 8. Maple, J. T. Beasley and A. B. Williams, for appellant.
    
      J. O. Briggs, for appellee.
   Olds, J.

This is an action brought in the Sullivan Circuit Court by the appellant against the appellee for money expended for the appellee, and for work and labor performed for appellee by the appellant, at the special instance and request of the appellee, alleging the value of the services at $40, and the money paid to be $20. The cause was put at issue and a trial had resulting in a finding and judgment in favor of appellant for $17.50. Motion by appellee to tax the costs to appellant sustained, and exceptions taken. The ruling on the motion to tax the costs is the only question presented in the case.

The statute provides that, In actions for money demands on contract, commenced in the circuit or superior courts, if the plaintiff recover less than fifty dollars, exclusive of costs, he shall pay costs, unless the judgment has been reduced below fifty dollars by set-off or counter-claim pleaded and proved by the defendant.” Section 5091, R. S. 188L There was neither counter-claim nor set-off pleaded as a defence.

It is contended that the third paragraph of answer sets up a counter-claim, but in this we think counsel are in error. The third paragraph is a denial of any request or authority to pay the $20 alleged to have been paid by appellant for appellee at the request of appellee.

Filed Sept. 28, 1889.

The motion to tax the costs to the appellant was properly sustained. There is no error in the record.

Judgment affirmed, with costs.  