Henigan v. Ervin
Before: Vanclief
Synopsis
Appeal—Test of Jurisdiction—Justice’s Court—Sum Demanded— Costs Exceeding Three Hundred Dollars—Dismissal.—Where the demanded sum is less than three hundred dollars, the jurisdiction of the justice's court and also the appellate jurisdiction of the supreme court must be tested by the sum demanded in the complaint, and the costs of the action in the justice’s court and in the superior court, upon appeal therefrom, are merely incidental to the action, and cannot be made the subject of an appeal to the supreme court, although the costs allowed may amount to more than the sum of three hundred dollars, and an ap. peal therefrom must be dismissed.
Id.—Non appeal able Order—Special Order after Judgment—Appeal from Justice’s Court.—A special order after judgment refusing to strike out a cost bill in the superior court, in a case appealed from the justice’s court, is not appealable to the supreme court, although thf cost bill amounts to over three hundred dollars.
Vanclief, C. This action was commenced in the court of a justice of the peace to recover the sum of $222.20 for cordwood alleged to have been sold and delivered by plaintiff to defendant. The judgment of the justice of the peace was in favor of the plaintiff for the sum of $169.95 and for costs amounting to $180.70. The defendant appealed from the judgment to the superior court “ on question of both law and fact.”
A jury trial de novo was had in the superior court, which resulted in a verdict in favor of plaintiff for the sum of $22.20. Within the time limited by law, and before judgment was entered on the verdict, the plaintiff filed an itemized cost bill amounting to $358.70, including the costs taxed in the justice’s court. On the day of the filing of this cost bill the defendant gave notice that on a stated future day he would move the court “ to strike out the costs claimed to have accrued in the justice’s court, on the ground that plaintiff is not [39]entitled to recover Ms alleged costs in said justice’s court, for the reasons that no verified memorandum ” of such costs “ was served on defendant or filed in said justice’s court; and also to strike out the items of costs alleged to have accrued in the superior court, on the grounds that the plaintiff is not entitled to costs therein.” And further gave notice that, in case the court determined that plaintiff was entitled to costs, he would move the court to tax the costs, “ on the grounds that the costs claimed by plaintiff are erroneous, and that the disbursements claimed had not been made by plaintiff, and that plaintiff’s memorandum contained items of disbursements which are not legal charges as costs in this action.” But no objection to any item of the cost bill is specified except as above stated. In the mean time, and before the questions as to costs were determined, judgment was entered on and in accordance with the verdict of the jury, reserving the matter of costs until after defendant’s motions relating to that matter should be disposed of. Afterward defendant’s motions relating to costs were heard and denied by the court, and the full amount of plaintiff’s cost bill ($358.70) was allowed and inserted in the judgment, to which defendant excepted.
The defendant appeals from the judgment as at first entered before his motions relating to costs were heard or denied, and also “ from an order and judgment of said superior court .... allowing and adjudging that plaintiff recover of and from said defendant costs in said action amounting to the sum of $350.70.” The appeals are on the judgment-roll containing a bill of exceptions showing, substantially, the facts above stated.
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