Prewett v. Nash ( 1874 )

Simrall, J.,

delivered the opinion of the court.

There was verdict and judgment in the court of the justice of the peace for one hundred and twenty-five dollars. On the trial of the appeal de novo in the circuit court, the plaintiff obtained a verdict for forty dollars. Thereupon, judgment was rendered against the defendant (who was the appellant), and his surety in the appeal bond for the amount of the verdict, and ten per cent, damages thereon. There is no bill of exceptions.

It is objected, in this court, that it was irregular, after the justice of the peace had permitted the jury to disperse, to recall them and allow an amendment of their verdict, so as to put it in apt form.

But, upon this writ of error, we cannot review the proceedings before the justice of the peace, and correct the irregularity complained of, if, indeed, it amounted to fatal error.

The second objection is, that it was error to render a judgment against appellant and his surety for the $10 and ten per cent, damages, since he had succeeded in reducing the judgment awarded by the justice of the peace.

The practice in such cases is given by the statute, and the judgment complained of is in strict accordance with it. “ If,” says the statute (§ 1331, Code of 1871), “the defendant be the appellant, and judgment be rendered for the plaintiff in the original suit, ten per cent, damages thereon shall be included in such judgment and costs, and judgment shall be rendered against the principal and his sureties jointly.” Moreover, the condition of the bond is “for the payment of such judgment as the said circuit court may render.” § 1332, Code.

There'is no error. Let the judgment be affirmed.