Zahnen v. Stender

Chief Justice Steele delivered the opinion of the court: Appellee (plaintiff below) brought suit in the justice’s court to recover the sum of about one hundred and thirty dollars. Judgment was rendered in his favor in the sum of one dollar, from which judgment he took an appeal to the county court. He recovered judgment in the county court in the sum of ninety dollars, from which the defendant appealed to the court of appeals. [458] Error of the court in the giving of instructions and in the admission of testimony is urged as grounds for the reversal of the judgment, but the abstract is so incomplete that we shall not undertake to pass upon these objections, but shall confine our investigation to the question mainly relied upon by counsel, which is: May an appeal be taken to the county court from a justice’s court by the party in whose favor a judgment has been rendered? Section 2679, Mills’ Ann. Stats., provides: “Appeals from judgments of justices of the peace, to the county court, shall be granted in all cases except on judgment confessed. Provided, the party praying the appeal shall, within ten days from the rendition of the judgment from which he desires to take an appeal, enter into bond, with security to be approved and conditioned as hereinafter provided, and pay the cost of granting the appeal only. ’ ’ Section 2680, Mills’ Ann. Stats., contains the form of the appeal bond, and provides that the appeal bond shall be in substance as therein stated. If we were to be guided by the statute containing the form of appeal bond, we should be required to say that in a case where a plaintiff is awarded a judgment in a nominal sum only, he cannot appeal; but the two statutes, considered together, seem to provide that either party may take an appeal from any judgment rendered by a justice of the peace except a judgment confessed, and this, we believe, was the intention of the legislature, and in such cases the form of the bond should be changed to meet the facts. We therefore hold that the statute granted to the plaintiff an appeal to the county court. There being no prejudicial error committed, we shall affirm the judgment. „ Affirmed. Mr. Justice Caswell and Mr. Justice Maxwell concur.