Baker v. Keith

OLOPTON, J. The record does not show any minute-entry of the judgment of the Circuit Court on the demurrer to the amended complaint. It appears only from the bill of exceptions. In such case, this court will not pass on the demurrer, nor consider the assignment of overruling it. — Carter v. Wilson, 61 Ala. 434; Petty v. Dill, 53 Ala. 641. Section 3124 of Code 1876 makes special provision for the disposition of the costs, on appeals to the Circuit Court from the judgments of justices of the peace. It provides: “ If the defendant appeals, or obtains a writ of certiorari, and the judgment of the Circuit Court is for less than the judgment of the justice, the court may tax either party with the costs, or both parties with any portion thereof. If the plaintiff appeals, and does not recover more than the amount for which the justice rendered judgment, he must be taxed with the costs.” These special provisions leave no field, as to the taxing of the costs on appeal from the judgment of a justice of the peace, for the operation of section 3129. The two sections are in irreconcilable conflict. The latter section is penal in its character, and is intended to punish plaintiffs for bringing frivolous actions to recover damages for torts. It applies to suits brought in common-law courts of record, and has no application to a suit originating in the justice’s court. Affirmed.