Anthony v. Fulhart

Biddle, J. Suit commenced, on an open account by the appellee, against the appellant, before a justice of the peace. Answer: 1. Denial; 2. Statute of limitations; and, 3. Set-off, in the form of a common count for goods sold and delivered, praying judgment in favor of the defendant. Trial and judgment before the justice, in favor of plaintiff, for fifty-four dollars and eighty cents, and costs. Defendant appealed to the circuit court, wherein the case was tried, and judgment rendered for the plaintiff for forty dollars and fifty cents. During the trial, the court allowed the defendant to amend his set-off by adding a bill of particulars. The plaintiff objected to the amendment, but no question is brought here upon the ruling. The defendant moved the court for judgment in his favor, and against the plaintiff, for all the costs which had accrued in the circuit court, upon the ground that the defendant had reduced the judgment against him before the justice of the peace more than five dollars; but the court overruled the motion, and rendered judgment for the forty dollars and fifty cents, and all the costs, against the defendant; and this presents the only question in the case : Ought the defendant below to have recovered his costs in the circuit court against the plaintiff ? This is the question for our consideration.' The argument of the appellee is, that, if the appellant had not amended his set-off' in the circuit court, he could not have l’educed the judgment, and therefore that he ought not to recover costs. We do not see how this can affect the case under the statute. The defendant below appealed from the judgment of the justice to the circuit [561] court, and therein reduced the judgment more than five dollars. 2 R. S. 1876, p. 627, sec. 70; Crist v. Glidewell, 25 Ind. 396; Beall v. Rowland, 32 Ind. 368; Brown v. Duke, 46 Ind. 343; Polk v. Nickens, 63 Ind. 439. The judgment is, as to costs, reversed, at the costs of the appellee; cause' remanded, with instructions to render judgment for the costs in the circuit court in favor of the appellant, and against the appellee.