2 Mo. 102 | Mo. | 1829
delivered the opinion of the Court.
This was originally an action commenced before a Justice of the Peace, by Du-may v. Bum, on an account for work and labor, and goods- sold and delivered, to the value of fourteen dollars and a half. Dumay got judgment before the Justice for ten dollars. From' which judgment Bran appealed to the Circuit Court, where on a trial, de novo, Dumay got judgment for fourteen dollars, from which Brun has appealed to this Court. The account sued on, consists of several small items; one of which is, “ To two tables, $8.” The hill of exceptions show, that on the trial of this cause in the Circuit Court, the appellee gave no evidence in the cause to the Court (sitting as a jury) to-substantiate and prove any other item, or charge, in his account, on tile among the papers and records of this cause on which the plaintiff’s action was brought, than the item and charge therein contained, of and for two tables ; for which said tables, the plaintiff has charged in his said account only the sum of eight dollars ; and that in relation to- the value of said tables, the plaintiS' proved that each table was worth the sum- of seven dollars,” &c.
The error assigned and relied on is, that the judgment of the Circuit Court is given for fourteen dollars and entire costs p when-it should have been given only for eight dollars, and have adjudged the costs in the Circuit Court against Dumay, agreeable to the provisions of the 13th see. of “ An act concerning costs,” which subjects the plaintiff to' the costs in the Circuit Court when he recovers less than the judgment before the Justice, &c. The evidence most clearly did not warrant the verdict or hading of the Court (sitting, as a jury,) and the defendant should have moved.fora new trial for thfit cause.
The error is-in the judgment of the jury on the facts,, and not in that of the Court on the law.
(12t>) Repeated decisions have settled that for such errors, the party injured, is-without remedy in- this Court. The judgment of the Circuit Court, is, therefore,, affirmed, with costs. The decision on this point makes it unnecessary to look much into the question raised by Dumay’s counsel, on his motion < to dismiss- the writ of error, growing out of the time and manner of talcing the bill of exceptions. From-what is said' of the matter, the 'practice would seem very loose and irregular, and? should not be countenanced.
