Meyer v. Helland

Bissell, P. J., delivered the opinion of the court. This action was begun before a justice of the peace in one of the'precincts of Phillips county. Observing the mandate of section 1933 of the General Statutes of 1883, the justice indorsed on the back of the summons the amount of the claim as one hundred dollars. The plaintiff contended that he had sustained damages by the taking of certain horses from his pasture by the defendants, Meyer and Reeves. Apparently the plaintiff’s title was a qualified one, resulting from his possession and the contract under which the stock came to [537] him. The trial before the justice resulted in a judgment in 'avor of Helland for $12.50 and the costs, which were taxed „d $8.05. An appeal was taken to the county court. The usual steps prescribed by the statute were followed, and the record got into the county court, where a new trial was had and judgment there rendered for Helland in the sum of one hundred and fifty dollars. While the case was pending in the county court and before its trial, Meyer and Beeves moved to dismiss it on various grounds. It was claimed that the judgment was entered on August 30th and the appeal bond was not filed till September 12th, more than ten days after the entry. This was the principal ground of the motion. On the final hearing of the motion, the county court found that the appeal had been taken according to the statute, and thereafter proceeded to try the case, and entered the judgment of which the plaintiffs in error complain. That court was powerless to enter a judgment beyond -the amount named in the plaintiff’s summons. The amount indorsed on the back of the summons as the amount of the plaintiff’s claim, like the ad damnum in the ordinary complaint, concludes the plaintiff as to the amount of his recovery, unless in some legal and recognized manner it be changed. Denver Brick Manfg. Co. v. McAllister, 6 Colo. 326; Eaton v. Graham, 11 Ill. 619; T. P. & W. Ry. Co. v. Pence, 71 Ill. 174. , For this error the judgment must be reversed and remanded for a new trial. Beversed.