Carnes v. Mattox

Hall, Justice.

It appears that Mattox sued Carnes in a justice’s courts that to the summons was attached an account containing a single item, charging the defendant “to $20.00, the value of one black and white cow, which he killed and sold, and used the proceeds to his own purpose.”

The case was tried by a jury, and a verdict found for the plaintiff, upon which a judgment was entered. This was carried to the superior court by a writ of certiorari, which, upon the hearing, was dismissed, with direction to the plaintiff in the suit to writeoff the interest (93 cents) found by the jury, which was immediately done. The errors alleged in the petition for certiorari were, that the justice erred in refusing to non-suit the case at the close of the plaintiff’s evidence, because the suit was brought upon a contract, and the evidence disclosed a case in which trover or trespass would have been the proper remedy, and because the finding of the jury was contrary to the evidence, and without evidence to support it.

1. There is no pleading in a justice’s court save the summons, to which the justice is required to, attach “a copy of the note, account, or cause of action sued on,” at the time the same is issued. Code §4139. This was done in this case, and the evidence substantially sustained the cause as thus set forth. If the justice had power, where an appeal was taken, to non-suit a case on the trial before the jury, which, to say the least, is doubtful, he certainly committed no error in overruling this motion.

2. There was a conflict of evidence in the case, and we *518 think there was enough to sustain the verdict of the jury u indeed, the verdict seems to be according to the weight of' the evidence. The court below did not see proper to interfere with it on this ground, and in refusing to do so, did not abuse the discretion wisely vested in him, and we cannot control its exercise upon this writ of error.

3. It is insisted that the judgment upon the certiorari found error in the verdict to the extent of the interest returned, and that this should have sustained the writ and sent the case back, inasmuch as it was an error of fact, and that the superior court can render a final decision only in cases where the error complained of is one of law, where there is no question of fact involved which makes another hearing necessary. Code, §4067. The power to find interest under the circumstances, it seems to us, presented only a question of law, and if the jury erred in this respect, the correction of this error did not hurt the defendant, and he has no right to complain of a judgment in his favor. Besides, upon the correction of this error, the plaintiff in the justice’s court had authority under the law to enter' judgment in the superior court against the defendant and his security, in accordance with the final decision of the' latter court. Code, §4071.

Upon looking into the bill of exceptions, we do not find any error specifically assigned upon this particular ruling of the judge, and unless this appears, we have no authority to interfere with it.

Judgment affirmed.