
    Palmer, Administrator, &c. v. Fuller, Executrix, &c.
    Appeal—Costs.—An administrator who is sued before a justice of the peace on a claim against him in his fiduciary capacity, has a right, under ■§ 64, 2 &. & H. p. 593, to appeal from the judgment rendered, though the justice had no jurisdiction of the cause; and the Court to which he appeals, in deciding the question of jurisdiction in his favor, should render judgment against the plaintiff for costs.
    APPEAL from the Daviess Circuit Court.
   Davison, J.

The appellee, as executrix of Henry Fuller, deceased, sued the appellant, as administrator of Andrew Palmer, deceased, before a justice of the peace, upon the following account, which was filed as the cause of action, viz:

Josiah Palmer, administrator of Andrew Palmer, deceased, to Catherine Fuller, executrix of Henry Fuller, deceased, Dr.

February 3,1857, to making rails........................... $7 75

Six years interest.................................................., 2 77

$10 52

The justice gave judgment in favor of the executrix, who was the plaintiff, for 7 dollars and 75 cents, and the defendant appealed. In the Circuit Court, to which the appeal waa taken, “the Court ordered the cause to be stricken from the docket, for the reason that it had no jurisdiction to try the merits of the action, and rendered judgment against the defendant for all costs which had accrued in said Court.” To this ruling the defendant excepted. It is conceded that the claim upon which the suit is founded, being against an administrator in his fiduciary character, the justice had no jurisdiction of the cause. Still the defendant, judgment having been rendered against him, had a'right to appeal. 2 R. S., G-. & H., p. 501, § 62; id, p. 593, § 64, And the Court in which the appeal is pending must adjudge the point of jurisdiction. In this instance such adjudication resulted in favor of the defendant; he was the prevailing party, and it seems “ reasonable and proper that he recover a judgment for his costs.” Dixon v. Hill, 8 Ind. 149.

J. W. Burton, for the appellant.

B. A. Clements, Jr., for the appellee.

¥e are of opinion that the Circuit Court, in rendering judgment against the defendant for costs, committed an error.

Per Curiam.

The judgment is reversed, with directions to the Court below to dismiss the suit at the costs of the plaintiff. Costs here against the appellee.  