
    E. C. Finch v. J. W. Hartpence.
    [Filed April 29, 1890.]
    Appeal: Not Defeated by Remittitur. A brought an action in the county court against B to recover twenty dollars, with interest thereon, for services. The cause was tried to a jury and a verdict rendered in his favor for fifteen dollars, and judgment entered thereon. A thereupon filed 'an amended bill of particulars in which he claimed but nineteen dollars. B appealed from the judgment to the 'district court, where the appeal was dismissed. Held, That the rights of the parties, so far as they related to appeal, were to be determined from the amount claimed in the bill of particulars on the trial, and that a party, after verdict and judgment could not defeat an appeal by then reducing the amount of his claim below twenty dollars.
    Error to the district court for Cedar county. Tried below before Norris, J.
    
      Gw/ R. Wilbur, and J. C. Robinson, for plaintiff in error,
    cited : Code, sec. 985 ; Comp. Stats., ch. 20, sec. 26 ; Bode v. Welch, 29 O. St., 19; Harrington v. Heath, 15 O., 483; Yale v. Edgerton, 11 Minn., 184; Papke v. Papke, 30 Id., 260; Minneapolis Harvester Works v. Hedges, 11 Neb., 46; Whiter. Merriam, 16 Id., 96.
    No appearance for defendant in error.
   Maxwell, J.

This action was brought by the defendant in error against the plaintiff in error in the county court of Cedar county to recover twenty dollars, with interest thereon, for services rendered.

The plaintiff (defendant in error) demanded a jury, and on the trial recovered a verdict for fifteen dollars, upon which judgment was rendered. He thereupon filed an amended bill of particulars, in which he claimed but nineteen dollars for his services. The plaintiff in error filed an undertaking for an appeal, which was duly approved by and a transcript filed in the district court. The defendant in error thereupon moved to dismiss the appeal “becausea remittitur was filed in the case in the court where the judgment was rendered before the appeal bond was approved by the court, and before the appeal was taken by the defendant, reducing the amount claimed by the plaintiff" from the defendant to nineteen dollars,” etc. The motion was sustained and the appeal dismissed, and the ruling of the court on the motion is the error complained of.

Sec. 1017 of the Code provides that appeals “shall not be allowed * * * in jury trials where neither party claims in his bill of particulars a sum exceeding twenty dollars.” If, however, the amount claimed exceed twenty dollars, be the excess but the smallest sum possible, the statute authorizes an appeal.

In the bill of particulars on which the case was tried the plaintiff below claimed twenty dollars and interest. The jury found that there was due to him but fifteen dollars,, and when judgment was rendered on this verdict the plaintiff could not, by reducing the amount of his claim, prevent an appeal. In other words, the right to appeal accrued the instant that judgment was entered on the verdict and continued for ten days thereafter, and the plaintiff, by reducing the amount of his demand, could not defeat that right.

The judgment of the district court is reversed and the cause remanded for further proceedings.

Reversed and remanded.

The other judges concur.  