Lynch v. Bruner

1 2 Appeal from Justice: filing appeal bond essential. Under Code, section 3580, providing that an appeal from a justice shall in no ease be allowed until a bond is taken and filed in the office of the justice, an appeal is not taken until such bond is filed, though notice of appeal has been given and entered on the docket of the justice. 1 2 Remitittur. The filing of a remitittur in the office of the justice, reducing the amount of a judgment to less than twenty-five dollars; before an appeal bond has been filed by the defendant, defeats the right of appeal from such judgment; under Code, section 3575, providing that no appeal shall be allowed where the amount in controversy does not exceed twenty-five dollars.

Appeal from Ida District Court. — Hon. Z. A. Church, Judge. This cause, involving less than one hundred dollars, comes to this court upon a certificate of the trial judge. From said certificate it appears: That the action was begun before a justice of the peace. That said justice rendered and entered -upon his docket a judgment in favor of the plaintiff for forty dol1 lars. On the same day, and after the entry of said judgment, and while the plaintiff was still in couft, defendant gave to plaintiff and the justice an oral notice of appeal. The justice made an entry thereof in his docket, fixed the amount of the appeal bond, and signed the docket,. Afterward, and on the same day, plaintiff filed with said justice a remitittur as to all of said judgment in excess of twenty-four dollars and ninety-nine cents. Thereafter, on the same day, the defendant filed his appeal bond, which was approved, and the papers and transcript were filed by the justice in the office of the clerk of the district court of the county. In the district court said cause was dismissed on plaintiff’s motion, because the amount in controversy was less than twenty-five dollars, and judgment was rendered against the defendant for costs. The questions presented, are: (1) Was said appeal taken and allowed, within the meaning of the provisions of the Code, before the remitittur was filed? (2) Did the filing of the remitittur reduce the amount in controversy to twenty-four dollars and ninety-nine cents, so as to defeat the appeal? (8) This question, as stated, is, in effect, embraced in those already set out.