Henry v. Chicago, Rock Island & Pacific Railway Co.

Supreme Court of Iowa

Henry v. Chicago, Rock Island & Pacific Railway Co.

103 N.W. 793, 127 Iowa 577

DecidedJune 9, 1905

StatusPublished

This text of 103 N.W. 793 (Henry v. Chicago, Rock Island & Pacific Railway Co.) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Henry v. Chicago, Rock Island & Pacific Railway Co., 103 N.W. 793, 127 Iowa 577 (iowa 1905).

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Opinion

SherwiN, C. J.

No appeal from a justice of the peace shall be allowed when the amount in controversy does not exceed $25. Code, section 4547. Ordinarily the amount in controversy is determined by the pleadings, or by the respective oral claims of the parties to the suit. Lundak v. C. [579]*579& N. W. Ry. Co., 65 Iowa, 473; Sterner v. Wilson, 68 Iowa, 714. But this is not always tbe test. Thus, in Young v. McWaid, 57 Iowa, 101, tbe defendant admitted a part of tbe plaintiff’s claim by tender, and it was held that tbe amount in controversy was tbe claim contested by tbe parties, and not tbe original claim. In Milner v. Gross, 66 Iowa, 252, tbe justice rendered a judgment for $35, and afterwards, on tbe same day, and before an appeal was taken, tbe plaintiff remitted all thereof in excess of $24.99. It was beld that tbe remittitur discharged all of tbe debt in excess of $24.99, and that an appeal would not lie. The rule is followed in Bateman v. Sisson, 70 Iowa, 518; Vorwald v. Marshall, 71 Iowa, 576; Knox v. Nicoli, 97 Iowa, 687; Young v. Stuart, 104 Iowa, 597.

It is contended that there was no authority for allowing an attorney’s fee as a part of tbe costs, and that consequently tbe judgment was in fact for $35 and tbe costs. It is apparent that tbe justice undertook to make tbe attorney’s fee a part of the costs, but, however this may be, the remittitur renounced all claim for judgment in excess of $25, and, under tbe authorities cited, an appeal will not lie, even though tbe justice render judgment for more than is claimed. Young v. Stuart, supra.

Section 4557 of tbe Code provides that, “where an omission or mistake has-been made by tbe justice in bis docket entries, . . . the court to which tbe appeal is taken may correct tbe mistake or supply tbe omission or direct tbe justice to do so.” This section is authority for supplying tbe omission to enter tbe oral remittitur upon unquestionable proof that it was made, and, if the justice after such re-mittitur made a mistake’ in bis docket entries, it will not change tbe rule as to tbe amount in controversy or as to tbe right to appeal.

Tbe appeals were rightly dismissed, and tbe judgments in both cases are affirmed.

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SherwiN, C. J.

No appeal from a justice of the peace shall be allowed when the amount in controversy does not exceed $25. Code, section 4547. Ordinarily the amount in controversy is determined by the pleadings, or by the respective oral claims of the parties to the suit. Lundak v. C. [579]*579& N. W. Ry. Co., 65 Iowa, 473; Sterner v. Wilson, 68 Iowa, 714. But this is not always tbe test. Thus, in Young v. McWaid, 57 Iowa, 101, tbe defendant admitted a part of tbe plaintiff’s claim by tender, and it was held that tbe amount in controversy was tbe claim contested by tbe parties, and not tbe original claim. In Milner v. Gross, 66 Iowa, 252, tbe justice rendered a judgment for $35, and afterwards, on tbe same day, and before an appeal was taken, tbe plaintiff remitted all thereof in excess of $24.99. It was beld that tbe remittitur discharged all of tbe debt in excess of $24.99, and that an appeal would not lie. The rule is followed in Bateman v. Sisson, 70 Iowa, 518; Vorwald v. Marshall, 71 Iowa, 576; Knox v. Nicoli, 97 Iowa, 687; Young v. Stuart, 104 Iowa, 597.

It is contended that there was no authority for allowing an attorney’s fee as a part of tbe costs, and that consequently tbe judgment was in fact for $35 and tbe costs. It is apparent that tbe justice undertook to make tbe attorney’s fee a part of the costs, but, however this may be, the remittitur renounced all claim for judgment in excess of $25, and, under tbe authorities cited, an appeal will not lie, even though tbe justice render judgment for more than is claimed. Young v. Stuart, supra.

Section 4557 of tbe Code provides that, “where an omission or mistake has-been made by tbe justice in bis docket entries, . . . the court to which tbe appeal is taken may correct tbe mistake or supply tbe omission or direct tbe justice to do so.” This section is authority for supplying tbe omission to enter tbe oral remittitur upon unquestionable proof that it was made, and, if the justice after such re-mittitur made a mistake’ in bis docket entries, it will not change tbe rule as to tbe amount in controversy or as to tbe right to appeal.

Tbe appeals were rightly dismissed, and tbe judgments in both cases are affirmed.

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103 N.W. 793, 127 Iowa 577, Counsel Stack Legal Research, https://law.counselstack.com/opinion/henry-v-chicago-rock-island-pacific-railway-co-iowa-1905.

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