
    Guttery v. Boshell.
    
      Action to recover Damages for Tren pa ns on Lands.
    
    [Decided June 17, 1902.]
    1. Trial and its incidents; judgment in action for trespass for costs of the case erroneous when plaintiff’s recovery less than twenty dollars —In an action to recover damages for trespass upon lands, where the jury assess the plaintiff’s damages at fifteen dollars, the judgment rendered by the court for that amount against the defendant, together with the costs of the case, is erroneous, since under the statute (Code, § 1326), the recovery being for less than twenty dollars, the plaintiff’s recovery for the costs should be limited to the amount of damages awarded.
    2. Action for tort; when judgment rendered on appeal. — "Where, in an action to recover damages for a tort, the plaintiff’s damages are assessed at less than twenty dollars and the trial court commits an error by failing to limit the plaintiff’s recovery of the costs to the amount of the damages assessed, on appeal a proper judgment will bei rendered in conformity with the statute.
    Appeal from the Circuit Court of Walker.
    Tried before the Hon. A. H. Alston.
    This was an action brought by the appellee against the appellant.
    
      The facts of the case are ■ sufficiently stated in the opinion.
    T. L. Bovram, foi* appellant.
    Coleman & Bankhead, contra.
    
   HARALSON, J.

— The action was for $250 claimed of defendant, as damages for trespass on land of the plaintiff. On trial, the jury found for the plaintiff, and assessed the damages at $r5, and judgment ivas rendered for that amount against the defendant together with the costs of the case. There was no bill of exceptions, and tlie appeal is taken by defendant on a transcript of the record. The error assigned is in the rendition of the judgment set out, and the ground of error insisted on is that the recovery was for less than $20; that the presiding judge did not certify that greater damages should have been awarded, and in the absence of such a certificate, the costs to be taxed against the defendant should have beieini limited by the judgment, to a recovery therefor, to not more than the damages assessed.

■Section 1326 of the Code provides that “In all actions to recover damages for torts, the plaintiff recovers no' more costs than damages, where such damages do not exceed twenty dollars, unless the presiding judge certifies that greater damages should have been awarded; and on failure to certify, judgment must be rendered against the plaintiff for such residue.”

In the absence of express recital of the fact in the record that the certificate of the judge was made, it cannot be presumed on error that it was made.—Tecumseh I. Co. v. Magnum, 67 Ala. 247.

It has long been hold that such a judgment is erroneous and must be reversed.—Galle v. Lynch, 21 Ala. 579; Reid v. Gordon, 2 Stew. 469; Tippins v. Peters. 103 Ala. 106. It is held, however, that on appeal in such cases the judgment will be here rendered in conformity with the statute.

Let tlie judgment below be reversed, and one here rendered against the appellant, the defendant below, for the sum of $15, the damages assessed against him by the jury, together with the costs in the court below, not to exceed that sum. The appellee will pay the costs of the appeal.

Reversed and rendered.  