
    Bahmann v. Stoner.
    
      Plea of tender of money before suit — Applies to actions of like, character before justice of the peace.
    
    Section 5ÍSi, Revised Statutes, which provides that a defendant in an action on a contract for the payment of money, who seeks to have the advantage of a tender made before suit in the common pleas, must pay the money tendered to the clerk before the trial, applies to actions of like character before a justice of the peace. And in such case, to keep the tender good, the amount must be deposited with the justice before trial.
    (Decided January 24, 1899.)
    Error to the Circuit Court of Hamilton county.
    Stoner sued Bahmann before a justice of the peace for rent, $37.50, and for damages to premises, $100, in all $137.50, and recovered a judgment therefor, and for costs. On appeal to the common pleas, Bahmann pleaded and proved that, before action brought, he tendered Stoner the amount due under the lease, $38.85, which was refused. He also set up a counterclaim on which he asked judgment for $50. A verdict was rendered in favor of plaintiff for the exact amount of the tender, >$38.85. It then being shown that the amount of $38.85 had been paid in by defendant to the clerk of the court before trial, it was considered that the plaintiff pay all the costs of the action, and that the clerk apply the amount deposited to the payment of the costs. And it appearing that the costs exceeded the amount of the tender by $6.79, judgment was rendered in favor of defendant against plaintiff for that amount. On error the circuit' court reversed this judgment and rendered final judgment against Bahmann for the amount of the verdict, interest and costs.
    
      
      Aaron A. Ferris, for plaintiff in error.
    
      George W. Eengst, for defendant in error.
   By the Court:

We see no error in the judgment of the circuit court reversing that of the common pleas. If the defendant desired to avail himself of his tender he should have kept it good by depositing the amount with the justice of the peace. Section 5137, Revised Statutes, requires such deposit to be made where the action is first begun in the common pleas. By section 6705, the provisions governing practice in the common pleas which are in their nature applicable to actions before justices of the peace, and where no special provision is found, are made applicable to such actions, and no reason is perceived why the requirements of section 5137 should not govern like actions first brought before justices. They seem to be in their nature applicable, and no special provision relating to the subject is found in the justice’s code. Such has been the practice and is, we think, the understanding of the bench and bar throughout the state. See Swan’s Treatise, 17th ed., p. 861.

Nor did the circuit court err in rendering final judgment. The defendant was content with the judgment of the common pleas, and the only question before the reviewing court was as to the judgment so rendered. The question was not whether the trial had been properly conducted, nor whether the verdict was for the proper amount, but whether the judgment rendered upon the verdict was right.

Judgment affirmed.  