Guttery v. Boshell , 132 Ala. 596 ( 1902 )

HARALSON, J.

— The action was for $250 claimed of defendant, as damages for trespass on land of the plaintiff. On trial, the jury found for the plaintiff, and assessed the damages at $r5, and judgment ivas rendered for that amount against the defendant together with the costs of the case. There was no bill of exceptions, and tlie appeal is taken by defendant on a transcript of the record. The error assigned is in the rendition of the judgment set out, and the ground of error insisted on is that the recovery was for less than $20; that the presiding judge did not certify that greater damages should have been awarded, and in the absence of such a certificate, the costs to be taxed against the defendant should have beieini limited by the judgment, to a recovery therefor, to not more than the damages assessed.

■Section 1326 of the Code provides that “In all actions to recover damages for torts, the plaintiff recovers no' more costs than damages, where such damages do not exceed twenty dollars, unless the presiding judge certifies that greater damages should have been awarded; and on failure to certify, judgment must be rendered against the plaintiff for such residue.”

In the absence of express recital of the fact in the record that the certificate of the judge was made, it cannot be presumed on error that it was made.—Tecumseh I. Co. v. Magnum, 67 Ala. 247.

It has long been hold that such a judgment is erroneous and must be reversed.—Galle v. Lynch, 21 Ala. 579; Reid v. Gordon, 2 Stew. 469; Tippins v. Peters. 103 Ala. 106. It is held, however, that on appeal in such cases the judgment will be here rendered in conformity with the statute.

Let tlie judgment below be reversed, and one here rendered against the appellant, the defendant below, for the sum of $15, the damages assessed against him by the jury, together with the costs in the court below, not to exceed that sum. The appellee will pay the costs of the appeal.

Reversed and rendered.