Opinion
(February Term, 1885.)
Costs.
On a trial before a justice, the defendant claimed a credit of $50 on the note sued on, which still left a balance due the plaintiff, and which the justice decided against him. On appeal to the Superior Court, this credit being the only matter in dispute, it was found by the jury in favor of the defendant; Held, that the defendant is liable for the costs in the Superior Court.
CIVIL ACTION tried on appeal from a justice of the peace before McKoy, Judge, and a jury at Fall Term, 1884, of LINCOLN Superior Court.
Messrs. George F. Bason and Hoke Hoke, for plaintiff.
Mr. W. P. Bynum, for defendant.
The defendant appealed.
This action was instituted before a justice of the peace on the 15th day of January, 1883, and tried before him. The plaintiff, before the justice, declared upon a note for one hundred dollars, dated February 16th, 1881, due ten months after date, and signed by one W. Prim as principal, and the defendant as his surety. Defendant claimed before the justice, that the said note was subject to a credit of fifty dollars which had not been paid thereon.
On the trial, the justice disallowed the credit of fifty dollars, and rendered judgment in behalf of the plaintiff for the amount of the note with interest and costs.
From that judgment the defendant appealed to the Superior Court.
In the Superior Court, after several continuances, the case was brought to trial upon the following issue: "Was the fifty dollars paid upon the note declared on."
It was admitted that fifty dollars was paid to the plaintiff; that at the time it was paid to him he held two notes, the one declared on in this action, and another for an amount more than fifty dollars, against Prim alone; and that the credit of fifty dollars was placed upon the latter note. It was further admitted that R. C. Graham was at the time of the trial and had been during the time elapsing from the date of the note sued on, entirely solvent. The jury found the issue in the affirmative. The court pronounced judgment in behalf of the plaintiff for the amount of the note, with interest, after deducting the credit, and for his costs. From which judgment the defendant appealed, excepting only to so much of the judgment as awarded costs to the plaintiff, so that the only question for our determination is, did His Honor commit error in giving judgment against the defendant for costs? We concur with the correctness of His Honor as to the costs of the action in the Superior Court. It is provided by section 542 of The Code that "after an appeal from the judgment of a justice of the peace shall be filed with the Clerk of the Superior Court, the costs in all subsequent stages shall be as herein provided for action originally brought to the Superior Court," and by section 540 it is provided that on an appeal from a justice of the peace to the Superior Court, if the appellant shall recover judgment in the appellate court he shall recover the costs of that court and those he ought to have recovered below, had the judgment of the court been correct.
As we are of the opinion there was no error in the judgment of the Superior Court in awarding costs to the plaintiff, it is needless to consider the point raised by the plaintiff, whether this Court will entertain an appeal where nothing but the question of costs is involved.
There is no error. The judgment of the Superior Court is affirmed.
No error. Affirmed.