
    David W. Watson vs. Orton P. Ward.
    July 22, 1880.
    Justice of Peace — Jurisdiction—Costs.—Section 8, article 6, of the constitution of this state provides that “ no justice of the peace shall have jurisdiction of any civil cause where the amount in controversy shall ■exceed $100.” The 11 amount in controversy” here mentioned does not include the costs of litigation.
    Same — Appeal on Questions of LSw — Power of District Court. — Upon an appeal to the district court from the judgment of a justice of the peace, upon questions of law alone, the judgment may be so modified as to-correct errors of law appearing upon the return, by which the appellant is aggrieved, if the erroneous part of. the judgment is distinct and separable from the rest of it.
    Same — Costs in District Court. — If a defendant appeals to the district court from the judgment of a justice of the peace, and does not sue! ceed in reducing the amount of the recovery before the justice one-half or more, the plaintiff is entitled to his costs and disbursements in the-district court.
    Plaintiff brought this action in a justice’s court, to recover-possession of a colt, stated in the affidavit and complaint .to be of the value of $70, and for $30 damages for its detention, and for costs. The property was taken from defendant under the writ, and delivered to the plaintiff, who -afterwards had judgment that he retain possession of the property, and-for $20 damages, and his costs taxed at $15,91. The defendant-appealed, on questions of law alone, to the district .court - for Goodhue county, where the cause was tried before Crosby,- J.f who ordered that the judgment of the justice “be so modified that the plaintiff have judgment that he is entitled to the> possession of the personal property described in the complaint,, which is of the value of $70, and that he retain possession thereof, and for his costs in justice court; and that he recover nothing for damages for the detention of said property.” Judgment was entered pursuant to this order, and for plaintiff’s costs in the district court, and the defendant again appealed.,
    
      J. C. McClure, for appellant.
    
      F. W. Hoyt, for respondent.
   Berry, J.

1. Section 8, article 6, of the constitution of this 'state provides that “no justice of the peace shall have jurisdiction of any civil cause where the amount in controversy shall exceed one hundred dollars. ” In the meaning of this section, the words “the amount in controversy” do not include the costs of litigation. They have reference to the subject of the litigation, of which the costs are a mere incident.

2. The evidence was certainly sufficient to sustain the find, ing of the unlawful and wrongful taking and detention charged in the complaint.

3. By Gen. St. 1878, c. 65, § 117, upon an appeal from the judgment of a justice of the peace, to the district court, upon questions of law alone, “ the action shall be tried in the district court upon the return of the justice.” “A trial is the judicial examination of the issues between the parties, whether they are issues of law or of fact.” Gen. St. 1878, c. 66, § 214. Upon the appeal upon questions of law alone, then, a judicial examination of the controversy between the parties is to be had upon the return of the justice. If, upon such examination, errors of law appear by which the appellant is aggrieved, and which show that the judgment is, in part, erroneous, the judgment may be so modified as to correct the error, if the erroneous part is distinct and separable from the rest of the judgment. State v. Bliss, 21 Minn. 458; Hinds v. American Express Co., 24 Minn. 95.

4. The defendant appealed from the judgment of the justice to the district court in this case. Not having succeeded in the district court in reducing the amount of the plaintiff’s recovery before the justice one-half or more, the plaintiff is entitled to his costs and disbursements in the district court. Gen. St. 1878, c. 67, § 14.

5. The plaintiff not having appealed from the judgment of the district court, we cannot consider the alleged error of which he complains.

Judgment affirmed.  