Wimbush v. Chinault

George, J., delivered the opinion of the court. The defendant in error recovered before a justice of the peace, against the plaintiff, a judgment for over $50. The latter appealed to the Circuit Court, and a verdict was there rendered against the appellant for $100. He moved for a new trial, and the circuit judge, on the hearing of the motion, being of opinion that $50 was the proper amount to be recovered, the plaintiff below remitted all exceeding that amount; and the new trial being refused, execution was ordered only for $50 and costs. The defendant below sued out a writ of error to reverse this judgment, claiming that he owes nothing; and the question for our consideration is, whether this court has jurisdiction. In Ward v. Scott, 57 Miss. 826, we held that this court had no jurisdiction to review a cause taken from a justice of the peace to the Circuit Court, where the judgment in the latter court did not, exclusive of costs, exceed $50. The judgment herein does not exceed that amount, and under the rule applied in that case we are without jurisdiction. It is insisted, however, that as the verdict was for a greater amount than $50, it was not in the power of the plaintiff below to remit the excess, and thus deprive his adversary of the right of appeal to this court.. If the remittitur was made for the purpose of preventing an appeal, and against the consent of the other party, it would not have the effect to deprive him of his right to have the cause reviewed in this court.. But that does not appear to be the case here. The remittitur was entered in consequence of a motion made by the plaintiff in error for a new trial, and was caused by the decision of the circuit judge that the verdict beyond the amount of $50 was excessive. It appears, therefore, to have been caused by an opinion, entertained by the circuit judge that it was necessary, to subserve the ends of justice. Supposing the circuit judge to be right in this opinion, it would be wrong to prevent the remittitur, and compel the party to suffer a reversal here for [237] an error which he was willing to correct in the court below. A circuit judge should not permit a remittitur to be entered at the mere will of the plaintiff, when there is no more reason for releasing the party from the amount remitted than from the remainder of the recovery, where -the effect of the remittitur would be to deprive the party of his right to appeal; and if such action were allowed, and there appeared no good ground for it, upon proper exception taken it would be disallowed here, at least to the extent of giving the party his right to appeal. A remittitur eutered after the judgment would have no effect to prevent an appeal, since our jurisdiction depends on the amount of the judgment. In Thompson v. Butler, 95 U. S. 694, the Supreme Court of the United States discuss the question involved in this opinion, and reach a conclusion not materially different from that reached by us.