
    Dr. Chas. Galloway v. Z. T. Champlin.
    [58 South. 710.]
    Appeal prom Justice op Peace. Damages. Oode 1906, See. 86.
    Sec. 86 of the Code of 1906 providing that if on appeal from a. judgment of a justice of the peace by defendant judgment be rendered for plaintiff for a sum equal to or greater than the amount recovered before the justice of the peace, ten per cent damages; shall be added to the judgment by the circuit court, has no application to an appeal of a defeated plaintiff, but refers to a defendant who appeals from the judgment of a justice of the peace and fails to make good in the circuit court.
    Appeal from the circuit court of Harrison county.
    Hon. T. H. Barrett, Judge.
    Suit by Z. T. Champlin against Dr. Chas. Galloway. From a judgment for plaintiff, defendant appeals.
    The facts are fully stated in the opinion of the court.
    
      J. L. Taylor, for appellant.
    The verdict was excessive for that the most that could have been recovered under any event was the principal and interest from maturity at six per cent, amounting to only one hundred and eighty dollars and he could not claim ten per cent statutory penalty on appeal from the justice court for that J. C. Wilmoth lost the suit in the - justice court and took the appeal himself.
    
      M. D. Brown, for appellee.
    No brief of counsel for appellee in the record.
   Cook, J.,

delivered the opinion of the court.

There is no error in the rulings and judgment of the trial court upon the merits of this case; but the case must he reversed, unless a remittitur is entered in this court.

This was an action on a promissory note, begun in the court of a justice of the péace. The plaintiff in that court was defeated, and therefore recovered nothing, whereupon he appealed to the circuit court. The circuit court rendered a judgment for the plaintiff for the amount of his claim plus ten per cent, damages. This was an error, as Sec. 86 of the Code of 1906 has no application to an appeal of a defeated plaintiff, but refers to a. defendant, who appeals from the judgment of a justice of the peace and fails to make good in the circuit court.

Affirmed with remittitur.  