Millikin v. Osborne

Hanna, J. Suit by Osborn against Millikin before a justice. Judgment for 29 dollars, 75 cents. Defendant appealed to the Common Pleas Court. Trial, and finding for plaintiff for 25 dollars, 5 dollars of which was remitted by the plaintiff. Judgment for 20 dollars and costs. Motion by defendant for new trial overruled and excepted to. Motion to retax the costs made by defendant and overruled, but no exception taken. The judgment against the defendant for costs is the only error assigned. Upon the record, as made and presented to us by the plaintiff, we do not perceive any error. There is no part of the transcript of the proceedings before the justice set out in the record before us, other than the judgment. We are not apprised whether there was any appearance by defendant before the justice. If he did not appear, he is not entitled to the benefit of § 70, 2 R. S. p. 464, upon which he founds his claim that he should have recovered costs of the plaintiff. The presumption is in favor of the ruling of the Court. Per Cwriam. The judgment is affirmed with 10 per cent, damaeres and costs.