Ritchey v. Adlefinger

71 N.W. 205, 102 Iowa 144

Opinion

Given, J.

— Section 3592 of the Code provides, in cases of appeal from a justice’s court, that “the appellant must pay the costs of the appeal, unless he obtains a more favorable judgment than that from which he appealed.” The judgment appealed from was not only for one hundred and seventeen dollars and twenty cents, but also for eight per cent, interest on that amount until paid, Erorn the date of the judgment. The judgment in the district court was for one hundred and twenty-five dollars and eighty-seven cents. The contention is whether, in determining which is the more favorable judgment to plaintiff, interest on the first, from its date, at the rate adjudged, to the date of the last, should be included. This is fully answered in Traer v. Filkins, 10 Iowa, 563, wherein the court says: “The judgment in the district court was twenty-nine and one-half cents greater than the one rendered by the j ustice, the excess being equal to the interest that had accrued from the date of that judgment. We cannot regard the judgment in the district court as a more favorable one to appellant than was given to him by the justice.” While it is ■ true, as contended, that that case was upon a different cause of action from this, yet said section 3592 is alike applicable to both. The cause of action does not control the application of that section. The fact that a counter-claim was pleaded in this case does not affect the application of said section. The single inquiry is whether the j udgment obtained by plaintiff in the district court is more favorable to him than the one from which he appealed. We think it is not, and therefore defendants’ motion was properly sustained. — • Affirmed.