Willman v. Clouser

Davison, J. The appellee, who was the plaintiff, sued Willman before a justice of the peace, alleging in his complaint that a certain dog, belonging to the defendant, had killed two of his, plaintiff’s, sheep, and scattered and injured his flock of sheep, to the damage of said plaintiff, $15, for which sum he demanded judgment, &c. The justice gave judgment in favor of the plaintiff for $2.75 ; and the defendant appealed. In the Common Pleas the issues were submitted to the Court, who found for the plaintiff one cent; and, over a motion for a new trial, rendered judgment, &c. And thereupon the defendant moved to tax all the costs in the cause, except one cent, to the plaintiff, but the Court overruled the motion, and defendant excepted. In support of his motion, the appellant refers to section 398 of the Practice Act, which says: “ In all claims for damages solely, not arising out of contract, if the plaintiff do not [319] recover five dollars damages, he shall recover no more costs than damages, except in actions for injuries to character and false imprisonment, and where the title to real estate comes in question.” 2 B. S., p. 127. Under this provision we have held that “ in actions for damages, where the recovery is less than five dollars, each party pays the costs made by himself, and can not recover back the amount paid by the other, except that the plaintiff may recover an amount of his costs equal to the amount of damages recovered.” Sinclair v. Roush, 14 Ind. 450. Thus it will at once be seen, that the defendant’s motion “ to tax all the costs in the cause, except one cent, to the plaintiff,” called upon the Court to render a decision unauthorized by the statute, and was therefore correctly overruled. A. Steele and II. P. Thompson, for the appellant. Per Curiam. The judgment is affirmed, with costs.