
    No. 9018.
    The Baltimore, Ohio and Chicago Railroad Company v. Johnson.
    Supreme Court. — New Trial. — Evidence.—No question is presented for decision in the Supreme Court on the overruling of a motion for a new-trial, when the evidence is not in the record.
    
      Same. — Appeal.—Amount in Controversy. — Where, in an action originating-before a justice of the peace, the amount in controversy, exclusive of interest and costs, is less than fifty dollars, no appeal will lie to the Supreme Court (R. S. 1881, section 632).
    From the Porter Circuit Court.
    
      J. H. Carpenter, for appellant.
    
      W. Johnston, for appellee.
   Bicknell, C. C.

This was a suit by the appellee against the appellant, before a justice of the peace, to recover damages for a horse unlawfully killed by the railway train of the appellant, upon the appellant’s railway, where it was not securely fenced.

The appellee recovered fifty dollars before the justice, on the 17th of February, 1879.

The appellant took an appeal to the Porter Circuit Court; there the appellee recovered forty-eight dollars and costs.

The appellant’s motion for a new trial was overruled. The appellant lias appealed to this court, and has assigned for error the overruling of the motion for a new trial. But the evidence is not in the record, therefore said alleged error presents no question for decision. Kerwin v. Myers, 71 Ind. 359.

The appellee moves to dismiss the appeal, because the action originated before ajustice of the peace, and the amount in controversy, exclusive of interest and costs, does not exceed fifty dollars. This motion must be sustained.

The amount in controversy in such a case is the amount recovered in the circuit court. Painter v. Guirl, 71 Ind. 240. And where that amount, exclusive of interest and costs, is less than fifty dollars, an appeal will not lie to this court. Painter v. Guirl, 71 Ind. 240. Civil Code, section 550, as amended by the act of March 14th, 1877, Acts 1877, Spec. Sess., p. 59.

Per Curiam. — It is therefore ordered, upon the foregoing opinion, that the appeal in this case be and the same is hereby dismissed, at the costs of the appellant.  