Comanche Mercantile Co. v. J. Floersheim Company

Opinion by

THACKER, C.

The plaintiff in error (Comanche Mercantile Company, a corporation) will be designated as defendant, and defendant in error (J. Floer-sheim Company, a corporation), as plaintiff, in accord with their respective titles in the trial court.

The plaintiff originally commenced this action in the court of a justice of the peace of Stephens county against the defendant for $92.87, and recovered judgment only for $35.21, which judgment was, by necessary implication, against the plaintiff for $57.66, the balance of the amount claimed for which he did not recover.

An appeal was taken by the plaintiff to the county court of said county; and, instead of describing the judgment as above in the appeal bond, it is therein recited:

“The condition of the above obligation is such that, whereas the said J. Floersheim & Co. intends to appeal to the county court within and for said county from á judgment rendered against him in favor of Comanche Mercantile Company in the justice court of said county on the 4th day of May, A. D. 1912, at Comanche, in said county.”

In the county court- the defendant moved to dismiss said appeal upon the ground that the foregoing recital is incorrect and renders the bond insufficient under section 4765, Stat; 1893 (section 5466, Rev. Laws 1910). The county court overruled said motion, the plaintiff recovered judgment for $92.66, and the defendant brings the case here for review, assigning as error only the overruling of said motion.

The county court did not err. The judgment in terms was in favor of the plaintiff; but in legal effect it was against it for $57.66, the balance claimed for which it failed to recover. The appeal bond was sufficient.

For the reasons stated, the judgment of the trial court should be affirmed.

By the Court: It is so ordered.