
    Milner v. Gross.
    1. Appeal from Justice’s Court: jurisdiction: amount in controversy: remittitur. A judgment was rendered by a justice of the peace for $35. On the same day the plaintiff remitted all thereof in excess of $24.99. The next day defendant appealed. Held that the amount in controversy was only $24.99, and that an appeal would not lie.
    Reed, J., dissenting.
    
    
      Appeal from Hardin Circuit Court.
    
    Wednesday, June 3.
    Action commenced before a justice of tbe peace to recover $35 for tbe services of an attorney at law. An appeal to the circuit court was taken by tbe defendant, and was dismissed on tbe ground that tbe amount in controvery was less tlian $25.. Defendant now appeals to this court.
    
      If. W. Anderson and Iluff <& Pillsbury, for appellant.
    
      Tom. H. Milner, for appellee.
   Beck, Ch. J.

I. The amount in controvery being less than $100, the case comes here upon a certificate of the judge of the circuit court, stating the question of law which is thought desirable for the court to decide. The question is this: A judgment was rendered by a justice for $35; on the same day the plaintiff remitted all thereof in excess of $24.99; the next day defendant appealed; is the amount in controversy less than $25?

The statute provides that from a justice of the peace “no appeal shall be allowed in any case where the amount in controversy does not exceed twenty-five dollars.” Code § 3575. When the appeal was allowed the amount in controversy, by the act of plaintiff in remitting the excess, was $24.99. The plaintiff, neither in this case nor in any other action, can recover the sum remitted. The remittitur operated as a discharge of that much of the debt. The plaintiff’s claim from the moment it was filed was $24.99, and could never be more than that sum. And even if it was filed for the purpose of depriving the circuit court of jurisdiction on appeal, it would not fail of that effect. An analogous case is provided for in the statute. If, in an action before a justice of the peace, a sum exceeding the jurisdiction of that office be found due either party, a remittitur may be entered of the amount of such excess, which the party remitting can never afterwards recover. The justice thereupon retains jurisdiction and enters judgment for the siim within his jurisdiction. Code, § 3553. Code, § 3575, limiting appeals to cases involving an amount in controversy exceeding $25, contemplates that the sum involved when the appeal is taken shall determine the right thereto. Young v. McWaid, 57 Iowa, 101.

We reach the conclusion that the circuit court ruled correctly in dismissing the appeal. As the decision of the question we have discussed is decisive of the case, other questions discussed by counsel need not be considered.

Affirmed.

Reed, J., dissenting.  