Smith v. Fleming

GOLDTHWAITE, J. When a suit is appealed to the County Court, the cause is governed by the same rules which controlled it when before the justice’s court. The statute directs, when a set off is offered in a justice’s court, and is satisfactorily proved, the justice shall give judgment in favor of the defendant for the overplus, provided it does not exceed fifty dollars; but if it exceeds that sum, then the justice is to give judgment, in favor of defendant for costs, provided he will enter a credit, or give the plaintiff a’ receipt for so much. [Digest, 361, § 14.] It is clear, if this is to govern, the judgment is irregular, as it exceeds fifty dollars. 2. But it is insisted, the plaintiff did not object in the court [770] below to its exercise of the utmost jurisdiction over the' subject, and therefore the judgment ought not to be reversed, according to the principle settled in Pruitt v. Stewart, 5 Ala. Rep. 112. We think tliere is no substantial difference between that case and this. In either 'case the party is advised by the verdict of the amount of his indebtedness, and if he will not claim the advantage which he is entitled to, no injustice is done him, by entering the judgment accordingly. Indeed it is evident that such a course is, or sometimes may be, more beneficial to the party than to be at the expense of further litigation. However this may be, the just presumption is, that no- injury is the consequence, if the party will lie by when he can avail himself of the privilege, without costs to his adversary, he shall not be permited to change the result in an appellate court. It is no answer to this view of the case, that the pleadings do not inform the party of the extent of the set off, because, however ignorant of it then, the verdict gives him all the information he can desire. We think the omission to require the court to enter the judgment for costs only, must be considered as assenting to the rendition of the judgment according to the verdict. Judgment affirmed.