
    GRAY against HANNAH.
    
      Supreme Court, Eighth District ;
    
    
      General Term, Jan., 1866.
    Costs on Appeal from Justice’s Court.—Hotioe of Appeal.
    Under Section 371 of the Code of Procedure, if a party appealing from a . justice’s judgment would entitle himself to costs, his notice of appeal must specify in plain and explicit language what the error or mistake of the justice really was.
    If the judgment was a recovery upon a single cause of action for unliquidated damages, a notice merely stating that the judgment should not have keen for a sum exceeding a specified smaller amount, without pointing out any element in the damages that was erroneous, is not sufficient to entitle the appellant to costs.
    Appeal from an order of a county court.
    This action was brought in a Justice’s Court, by David Gray, against Alexander Hannah. The material facts are stated in the opinion of the court.
    H". H. Woodward, for the appellant.
    
      J. H. McDonald, for the respondent.
   By the Court.—E. Darwin Smith, J.

The plaintiff sued the defendant in a-justice court in trespass, for damages done by the defendant’s dog in killing his sheep, and recovered a verdict for eighty-six dollars, damages. The defendant appealed to the County Court, where the cause was retried and the' defendant succeeded in reducing the plaintiff’s recovery to eighty dollars, for which the plaintiff had a verdict in the County Court. The defendant claimed costs upon the appeal and the County Court decided.that he was entitled to recover costs, and directed that they he adjusted and applied upon the judg. ment." From this order the plaintiff appeals.

The question for us is whether the statute regulating costs upon appeals from Justices’ Courts require such a construction as shall cast upon a plaintiff' who has a good cause of action, the whole costs of a litigation because one jury differed from another in respect to the extent of his damages to the amount of six dollars, and he had sought to save expense by sueing in a justice’s court, when if he had sued in,this court he would have recovered full costs.

The order of the county court was based upon the provision of section 371 of the Code, giving costs to the appellant when the' judgment in the county court is more favorable to the appellant than the judgment in the court below, in certain cases.

The notice of appeal in the case contains six specifications alleging error in the Justice Court, four of which relate to the merits and to the proceedings on the trial. The fifth was t£ that the judgment should have been for the defendant,” and the sixth, “ that the judgment should not have been for a sum exceeding thirty-five dollars, with costs, and the defendant therefore offers to allow such judgment to be corrected accordingly.” The omission of plaintiff to offer to amend the judgment by reducing it to thirty-five dollars, or to make any offer to reduce the amount of damages recovered, is the basis of, and reason for, the order giving the appellant costs of the appeal.

The learned County Judge is not without considerable authority in this court for his decision. The cases of Fox v. Nellis, 25 How. Pr., 144, and Loomis v. Higbie, 29 How. Pr., 232, fully I think sustain the decision, and perhaps some other cases.

Section 371 of the Code requires the party appealing from a judgment of a Justice of the Peace to the County Court, to state in his notice of appeal " in what particular or particulars, he claims the judgment should have been more favorable to him,” and provides that within 15 days after the service of the notice of appeal the respondent may serve upon the appellant an offer in writing to allow the judgment bo corrected in any of the particulars mentioned in the notice of appeal, and that the appellant, within five days thereafter, may accept such offer, &c. And it is further provided that if such offer- is not made and the judgment in the appellate court be more favorable to the appellant than the judgment in the court below, then he shall recover costs.

The plaintiff in this case made no offer, and he is clearly liable for costs, and- the order of the County Court clearly-right, if the appellant has imposed such duty upon him at the peril of paying costs, if the judgment on the appeal, as it is, be more favorable to the appellant in the County Court. The duty of the plaintiff in such case, if he would escape such liability for costs, depends upon the question whether the appellant has in his notice of appeal stated any particular in which he claims that the judgment should have been more favorable to him. Of the two specifications made as above set forth, the first is clearly no such particular, within any of the cases. It is simply an assertion, in effect, that the entire judgment is erroneous. The second specification, “ that the judgment should have been for a sum not exceeding thirty-five dollars, with costs,” is the only specification relied on by counsel to sustain the order of the County Court, and is the one upon which it was based by the county Judge.

I do not think this is a statement of any particular in,which the judgment should have been more favorable to the appellant, within the' true intent and meaning of the term as used in section 371. ^ p.

The object and meaning of this section, and' the evil it was intended to obviate, are well stated by Judge Campbell in Wynkoop v. Holbert, 25 How. Pr., 158, and by Judge Daniels in Forsyth v. Ferguson, 27 Id., 67.

Judge Campbell says that formerly, “judgments were entirely reversed for errors, which it was manifest affected only parts or portions of such judgments,” and says this statute enables a party aggrieved to “ point out any particular which he claims to be error.” And Judge Daniels well says the appellant must specify, separate or distinguish in a tangible form so that the respondent may comprehend the precise change- in the j udgment to which he is willing to consent. Terms of a general nature are not sufficient.”

I think this is a -true exposition of the section.

Unless such a specification is made by the appellant the plaintiff is not bound to make any offer. The statement in this case that the judgment should not have exceeded thirty-five dollars, does not specify, point out, or distinguish any particular error. It does not show why that sum is named in preference to any other sum from one dollar up to eighty. It does not point to any element in the damages that is erroneous, any principle adopted in estimating damages that was mistaken, and involved the error of all the judgment above thirty-five dollars. It does not show that any mistake of calculation was made, any erroneous item allowed—or any one or more error of fact—or misapplication of law or misconstruction of the evidence led to the excess over thirty five dollars. The action is trespass for destroying plaintiff’s sheep. The statement does not show any error or claim any mistake in respect to the number of sheep destroyed, any error in the valuation of the sheep or any of them, explanatory of the excess in the judgment over thirty-five dollars. If the judgment had been recovered upon several items of an account or claim of any nature—as for several promissory notes—or several distinct trespasses—the specification in the notice of appeal should state which of the several claims allowed or embraced in the judgment was or was not claimed to be eironeous. The intent of the statute is that the appellant shall in his notice of appeal show distinctly what the error or mistake of the Justice in his decision really was, in language plain and explicit. To interpret this statute so as to allow such general statements of alleged errors in judgments as in this case, to be sufficient to call upon the respondent to make an offer to amend such judgment at the peril of costs for his omission to do so, tends, it seems to me, to defeat rather than subserve the salutary object of the legislature in its passage.

This is well illustrated by Judge Balcom in Loomis v. Higbie, (supra) where he shows if such general statements of the particulars in which the appellant claims the judgment to be excessive are allowed to satisfy the statute, a party against whom a judgment is recovered in a Justice Court for one hundred and fifty dollars, as in that case, has only to say in his notice of appeal that the judgment was for one hundred and forty-nine dollars •too much, or that it should have been for one hundred and forty-nine less, to cast upon the opposite party the risk of the whole Etigation, unless he stipulate at once to remit all his judgment except the one dollar. In that case the specification which was held sufficient to impose upon the plaintiff the duty to make an offer, notwithstanding its absurdity was so well exposed, and was in these words—“ the judgment should have been for a less amount of damages against the defendant.” It seems to me, with all due deference to brother Balcom, that that is not the statement of any particular in which the judgment in that case was erroneous, within any fair and just construction of this statute.

It is about as general and vague a statement of error as could be made. It points to no element or ground of error in assessing damage. It shows no reason or ground for the statement that the judgment should have been for a less sum. It states no fact, refers to no item of claim, or of account, going back of the judgment itself. It simply assails the whole judgment. It scarcely could have been more vague, general or uncertain, if it had simply said the judgment was wrong and should have been for the defendant; it does not'impliedly admit that that plaintiff should recover any sum above nominal damages. " .

The case of Fox v. Nellis (25 How. Pr., 144), is I think equally mistaken. The judgment in that case before the Justice was for $159.50. The specification in the notice of appeal which was held good was in these words. “ The judgment at most should not have been for more than $5.” Upon such a notice the plaintiff, who recovered $130 in the County Court, was held bound to pay costs to the appellant.

It seems to me that this notice did not comply with the statute. It did not state any particular in which the judgment was erroneous. It stated no reason or ground for the allegation that the judgment should be only five dollars. It specified no error in making up the judgment. It pointed out no mistake or misconception, by the Justice in law or fact leading to the pretended error of the Justice of $154.50.

It seems to me that the Court should hold that it will not deprive a successful party of his costs upon any notice or specifition of error so vague, so inexplicit, as that in either of these cases.

Such an interpretation of the statute we cannot but see does great injustice. A party who seeks to throw upon his adversary the hazard of further litigation should take his ground and put the opposite party upon his guard, in clear, explicit and not doubtful language, in his notice of appeal. He should point out clearly the error he complains of, so that Ms adversary may know what precise part of the claim is particularly disputed and will be contested upon the appeal. I think the order of the County Judge in this case should be reversed, and the defendant’s motion for costs should be denied, with $10 costs of appeal.

Order accordingly. 
      
       Present T. A. Johnson, J. C. Smith and E. D. Smith, JJ.
     