72 So. 104 | Ala. | 1916
Lead Opinion
This action of the court was error to reverse. It was a failure and declination to do what the statute expressly declares must be done in such cases. Section 3663 of the Code applies and controls. It reads as follows: “In all actions to recover damages for torts, the plaintiff recovers no more costs than damages, where such damages do not exceed twenty dollars, unless the presiding judge certifies that greater damages should have been awarded; and on failure to certify, judgment must be rendered against the plaintiff for such residue.”
In the case of South & North Ala. R. R. Co. v. Bradley, 84 Ala. 469, 4 South. 611, the latter, as clerk of the court, sued the ■former for fees in certain cases in which the railroad company was successful; and .the court said: “The fees due the plaintiff, as compensation for official services performed by him, at the request of the defendant, being such as were authorized by law, constituted a debt, for which an action of debt, or indebitatus assumpsit would clearly lie. And the provisions of the statute, authorizing a judgment to be rendered in favor of the successful party for costs in civil actions (Gode 1886, § 2837), is no bar to the maintenance of such a suit.—Hill v. White, 1 Ala. 576; Carrvill v. Reynolds, 9 Ala. 969; Tillman v. Wood, 58 Ala. 578; Dane v. Loomis, 51 Ala. 487; Bradley v. State, 69 Ala. 318.”
The defendant is therefore liable for fees and costs, notwithstanding the judgment against him in this case is limited to $10. If the plaintiff had recovered full costs of him this would have included all the fees due the officers and the witnesses in the case, consequently, the “residue,” as mentioned in the statute, includes all the costs the plaintiff could have recovered, less $10. So it clearly appears that the error was not without injury to the defendant.
The judgment appealed from will therefore be reversed; and in accordance with the practice of this court in such cases, a judgment will be here rendered for the residue, as directed by the statute.—Rarden v. Maddox, supra; Tecumseh v. Mangum, 67 Ala. 246, 247; Guttery v. Boshell, 132 Ala. 596, 32 South. 304.
Reversed and rendered.-
Dissenting Opinion
I find no warrant in the statute for rendering a judgment in favor of the defendant for the defendant’s costs. It seems to me that a proper construction of sections 3662, 3663, of the Code would be that a plaintiff in tort who recovers less than $20 is penalized only by the loss of his own costs in excess of the amount of the judgment. But as the question has been settled by the majority of the court, I refrain from a useless statement of the reasons for my own conclusion.