Dill v. Phillips

COLLIER, C. J. It is enacted by a statute of this State, that whenever the defendant shall appeal from the judgment of a justice of the peace, and the .appellate court shall render judgment in favor of the plaintiff, for a less sum than that recovered before such justice, it may enter judgment for the costs of the appeal, either against the plaintiff" or defendant, according to the justice of the case ; but where the plaintiff, or successful party, shall appeal, and shall not recover more than was adjudged by the justice, in that case he shall pay all costs. Clay’s Dig. 315, § 16. This enactment is explicit, and authorises the appellate court to render a judgment against either party for costs, as justice may require, where the defendant is the appellant, and the amount of the plaintiff’s recovery before the justice is diminished,, though not entirely defeated. And this statute applies as well where a judgment is rendered on verdict, as without the intervention of a jury. Here the judgment of the justice-was for more than thirty-five dollars, while the judgment of the county court is for some fifteen dollars less. The case-is orre in .which the court might exercise its discretion as to-the costs, and we cannot revise its judgment in this particular. 353 In taking the note of Miller payable to himself alone, and claiming it as his exclusive property, the plaintiff converted to his own use so much of the price of the horse. This being the case, and the ability and readiness of Miller to pay being shown, we can conceive of no objection to the allowance of one half of its amount to the defendant by way of set off. Whether, if the amount sought to be recovered exceeded fifty dollars, so as to have required the suit to be instituted in the county or circuit court, such set off would be admissible, we need not inquire; for however this may be, the enlarged and liberal rules which are recognized on the trial of appeals from justices of the peace, clearly warranted its admission. Wood v. Wood, et al. 3 Ala. Rep. 756, is a direct authority to show, that if the defendant was not allowed to recover his interest in the note of Miller, at law, he would be remediless; for the amount in controversy would be too small to induce the interference of equity. The doctrine of an unsettled partnership account cannot be invoked to defeat the defence; and an examination of Beason v. Riddle, 11 Ala. Rep. 743, will show that it is wholly inapplicable. Our conclusion is, that the judgment must be affirmed.