
    Clark et al. v. Milburn et al.
    
      Costs. — Remittitur Before Justice, After Rendition of Judgment. — Appeal to-Circuit Court — In an action before a justice of the peace, wherein the-judgment plaintiff, after the rendition of judgment, had entered a remittitur of a sum exceeding five dollars, the judgment defendant subsequently appealed the action to the circuit court, wherein judgment was; rendered against him for the amount of the judgment before the justice,, less the exact amount remitted.
    
      Held, that the judgment plaintiff is entitled to recover the costs made in the circuit court, as well as those made before the justice.
    From the Franklin Circuit Court.
    
      H. Berry, Jr., and W. H. Bracken, for appellants.
    
      F. S. Swift, S. S. Harrell and B. F. Davis, for appellees.
   Niblack, C. J.

This action was commenced before a justice of the peace, on an account for one hundred and thirty-five dollars.

Upon a trial before the justice, on the 7th day of August,. 1874, the appellees obtained a verdict and judgment, against the appellants, for one hundred and thirty-eight dollars and sixty-five cents. On the 15th day of the same month the appellees entered a remittitur, on the justice’s docket, of six dollars of the judgment. On the 5th day of September, 1874, the appellants appealed to the circuit court, where a verdict was returned against them for one hundred .and thirty-two dollars and sixty-five cents, the precise .amount which remained of the judgment before the justice after the remittitur was entered, and judgment was rendered in accordance with the verdict.

Thereupon the appellants moved for judgment, against the appellees, for all the costs which had accrued in the circuit court, upon the ground that the j udgment as rendered by the justice had been reduced more than five dollars, but that motion was overruled and error is assigned here upon that ruling, thus making it the only question presented by the record for our consideration.

The entry of a remittitur is a well recognized method of reducing the judgment when a verdict has been returned for a larger amount than can be sustained, or when, for any cause, the plaintiff wishes to abate the amount or sum to be recovered by the judgment.

The entry of the remittitur in the case before us, in effect, reduced the judgment rendered by the justice to the sum of one hundred and thirty-two dollars and sixty-five cents, and the judgment must be regarded as having stood at that sum, when it was appealed from to the circuit court.

The appellants having failed to reduce the judgment below the amount at which it thus stood when they appealed from it, they were not entitled to recover the costs which had accrued in the circuit court. 2 R. S. 1876, p. 627.

We are, therefore, of the opinion, that the court below did not err in' overruling the appellant’s motion for judgment for costs, as above set forth.

The judgment is affirmed, at the costs of the appellants.  