Wynkoop v. Holbert , 25 How. Pr. 158 ( 1868 )

By the court, Campbell, Justice.

The plaintiff recovered a judgment in the justice’s court, and on appeal and trial in the court above the verdict was in favor of the plaintiff, but for a less amount than the judgment in the justice’s court. As the prevailing party, the plaintiffs are entitled to costs, unless the case falls within the exceptions mentioned in the amendments of 1862 to section 3*71 of the Code. I think it does not, for the reason that the notice of appeal does not state any particular in which the judgment in the justice’s court could have been corrected or amended. The defendant, in his notice, claimed that the facts proved did not show a cause of action; that there was no liability established by the proof, and that the judgment should have been more favorable to him in this, that it should have been in his favor for costs, on the ground that there was no cause of action shown. If the defendant could have made, good his claim before the appellate court on the trial, there should have been a verdict in his favor, and virtually an entire reversal of the justice’s judgment. The judgment should have been reversed, not amended or corrected. The evil which the amendment to section 311 was intended to remedy, has been apparent to every judge who has sat in courts of review. Judgments were entirely reversed for errors which it was manifest affected only parts or portions of such judgments. Now the party who feels aggrieved by any judgment, may point out any particular which he claims to be error, and if the successful phrty is satisfied that there is error in such particular, or does not desire further to litigate such particular, he may waive it, and give notice to .the justice and the appellant that he will allow the judgment to be corrected in the particular or particulars mentioned in the notice of appeal. If, when such particulars are pointed out by the notice of appeal, and claimed to be errors, the respondent refuses to admit them as such, and the appellant succeeds in establishing them as error in the appellate court, and by this means renders the judgment more favorable to him than it was in the court below, then the respondent shall pay costs, even though the judgment may still be in his favor as to the particulars not in dispute. But when the appellant points out no particular error, no particular in which the judgment should be corrected or amended, but claims, as in this case, that the- respondent has not made out a cause of action, then the whole subject of the controversy remains entire. The claim is not that the judgment be amended or corrected, but that it be reversed. The only offer which the respondent could have made would have been, that the judgment was erroneous and might be reversed. This offer, it is very clear, he was not required to make. The amendment might have been drawn with more precision, but the meaning and intent of the legislature I think is plain. The clerk erred in taxing costs for the defendant and appellant. The taxation must be set aside, and costs must be taxed for the respondent as the prevailing party. The question is new, and there will be no costs on this motion.