
    Brown v. Snavely.
    Costs. — Where the defendant appeals from a judgment rendered by a justice of the peace against him, in an action for a trespass to personal property, and does not reduce the judgment five dollars, he is Itable to a full judgment for costs.
    Same. — Section 398 of the code, 2 G. & H. 227, which provides that in actions for damages solely, not arising out of contract, if the plaintiff does not recover five dollars damages, he shall recover no more costs than damages, &c., does not apply to such a case.
    APPEAL from the Howard Circuit Court.
   Elliott, C. J.

Snavely, the appellee, sued the appellant for a trespass to personal property, before a justice of the peace, and recovered a judgment for the sum of three dollars and twelve cents,' and costs. Brown appealed to the Circuit Court, where judgment was rendered against him for three dollars and costs. Brown moved the court to tax all the costs, except the sum of three dollars, to Snavely, the plaintiff below, but the court overruled the motion, and rendered a judgment against Brown, the defendant below, for full costs, which presents the only question made in the case.

The ruling of the Circuit Court was right. Section 70 of the justices’ act, 2 G. & H. 597, provides that, “Costs shall follow judgment in the Court of Common Pleas, or Circuit Court, on appeals, with the following exceptions: First, if either party against whom judgment has been rendered appeal, and reduce the judgment against him five dollars or more, he shall recover his costs in the Court of Common Pleas, or Circuit Court, when the appellant appeared before the justice. Second, if either party in whose favor judgment has been rendered appeal, and do not recover at least five dollars more than ho recovered before the justice, the appellee shall recover his costs in the Court of Common Pleas, or Circuit Court.”

These are the only exceptions made by the statute. Brown appealed, and did not reduce the judgment against him five dollars. The court, therefore, was right in adjudging that the costs should follow the judgment. Section 398 of the code, 2 G. & H. 227, to which we are referred by the appellant’s counsel, is not applicable to the case.

J. W. Robinson, for appellant.

The judgment of the Circuit Court is affirmed, with 10 per cent, damages, and costs.  