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what particular, or particulars, he claims the judgment should have been more favorable to him. If he claims that the amount of judgment is less favorable to him than it should have been, he shall state what should have been its amount. Within fifteen days after the service of the notice of appeal, the respondent may serve upon the appellant and justice an offer, in writing, to allow the judgment to be corrected in any of the particulars mentioned in the notice of appeal. The appellant may, thereupon, and within five days thereafter, file with the justice a written acceptance of such offer, who shall, thereupon, make a minute thereof in his docket, and correct such judgment accordingly, and the same, so corrected, shall stand as his judgment, and be enforced accordingly; and any execution which has been issued upon the judg. ment appealed from shall be amended by the justice to correspond with the amended judgment; and no undertaking, given to stay execution, shall be enforced for more than the amount of the corrected judgment. If such offer be not made, and the judgment in the appellate court be more favorable to the appellant than the judgment in the court below, or if such offer be made and not accepted, and the judgment in the appellate court be more favorable to the appellant than the offer of the respondent, the appellant shall recover costs; provided, however, that the appellant shall not recover costs unless the judgment appealed from shall be reversed, on such appeal, or be made more favorable to him, to the amount of at least ten dollars. If the offer be made, and accepted by the appellant, the appellant shall recover all his disbursements on appeal, and all his costs in the court below. But the appellant shall not recover costs except as provided in this chapter. The respondent shall be entitled to recover costs where the appellant is not. Whenever costs are awarded to the appellant, he shall be allowed to tax, as part thereof, the costs and fees paid to the justice on making the appeal, as disbursements, in addition to the costs in the appellate court; and when the judgment in the suit before the justice was against such appellant, he shall further be allowed to tax the costs incurred by him, which he would have been entitled to recover, in case the judgment below had been rendered in his favor. If, upon an appeal, a recovery for any debt or damages be had by one party, and costs be awarded to the other party, court shall set off such costs against such debt or damages, and render judgment for the balance. The following fees and costs, and no other, except fees of officers, disbursements, and witnesses'
fees, shall be allowed on appeal, to the party entitled to costs as herein provided, when the new trial is in the county court. For proceedings before notice of trial, ten dollars; for all subsequent proceedings before trial, seven dollars; for trial of an issue of law, ten dollars ; for every trial of an issue of fact, fifteen dollars; for argument of a motion for a new trial on a case or a bill of exceptions, ten dollars ; in all cases, to either party, for every term not exceeding five, at which the appeal is necessarily on the calendar and is not tried or is not postponed by the court, seven dollars. In other appeals the costs shall be as follows: To the appellant, on reversal, fifteen dollars; to the respondent, on the affirmance, twelve dollars. If the judgment appealed from be reversed in part, and affirmed as to the residue, the amount of costs allowed to either party shall be such sum as the appellate court may award, not exceeding ten dollars. If the appeal be dismissed for want of prosecution, as provided by section three hundred and sixty-four, no costs shall be allowed to either party. In every appeal, the justice of the peace before whom the judgment appealed from was rendered, shall receive two dollars for his return. If the judgment be reversed for an error of fact in the proceedings, not affecting the merits, costs shall be in the discretion of the court. If, in the notice of appeal, the appellant shall not state in what particular or particulars he claims the judgment should have been more favorable to him, he shall not be entitled to costs unless the judgment appealed from shall be wholly reversed.
a. Notice of appeal.-When the appeal is brought for the sole purpose of reversing the judgment, the notice of appeal need not state in what particular the judgment should' have been more favorable (Wallace v. Patter8on, 29 How. 170). A notice that judgment for damages is for too large a sum, and ought not to have been given for more than $33 damages and $5 costs, and
if not so amended, should be reversed,-held sufficient (Myers v. White, 37 How. 393; but see Loveland v. Atwood, 31 How. 467).
b. A notice of appeal which stated the judgment should have been in favor of defendant and against the plaintiff for costs, is not sufficient to entitle the appellant to costs on recovering a more favorable judgment in the county court (Loomis v. Higbie, 29 How. 232; Reed v. Moore, 31 How. 264); other. wise, of a statement “That the judgment should have been for a less amount of damages against the defendant” (id. ; see note 29 How. 288); and a notice that “the judgment is for too much,”-held not sufficient (Barnard v. Pierce, 28 How. 232).
c. Offer.-If the appellant appears in person, the offer to allow the judgment to be amended as claimed in the notice of appeal, should be served on the appellant and on the justice (Smith v. Hinds, 30 How. 187); but if the appellant appears by attorney, the offer should be served on such attorney (Purois v. Gray, 39 How. 1).
d. The offer cannot be given in evidence on the argument of the appeal (Finney v. Veeder, 45 Barb. 388; 1 Abb. N. S. 366; 31 How. 14).
a. More favorable verdict.-Where plaintiff recovered judgment for $50 damages and $8 05 costs, and defendant appealed, specifying that the damages should have been $5 and the costs of the justice, the defendant served an offer to allow judgment to be reduced to $35 damages, defendant did not accept the offer, and on the trial in the county court recovered $25 damages,-held that plaintiff had recovered a more favorable verdict, and was entitled to costs (Baldwin v. Brown, 37 How. 385). In estimating whether or not the verdict in the county court is more favorable, interest is not to be calculated; thus, where the plaintiff recovered $80 in the justice's court, and $75 in the county court, he is entitled to costs; although, if interest had been added, it would have made the second verdict more than $10 less than the first (Humiston v. Ballard, 39 How. 93; see Smith v. May, 32 How. 222; 2 Abb. N. S. 227).
6. Plaintiff recovered judgment for $140; the defendant appealed, and claimed that judgment should have been in his favor. On a new trial in the county court plaintiff recovered $68.59,-held that the plaintiff was entitled to costs of appeal (Wynkoop v. Holbert, 25 How. 158; 43 Barb. 266).
c. The plaintiff recovered judgment for $159.50; defendant appealed, and stated that judgment at most should have been only for $5; the plaintiff did not offer to allow the judgment to be corrected, and on a new trial in the county court recovered judgment for $130,-held that defendant was entitled to costs (Fox v. Nellis, 25 How. 144; see Myers v. White, 37 How. 393).
d. Costs.—Where an offer to allow the judgment to be amended was served, and was accepted, and the judgment was corrected accordingly,-held that the appellant was entitled to an order, or judgment, from the appellate court for his disbursements on appeal, and his costs in the court below (Ponto v. Phelps, 36 How. 19).
e. The costs to the appellant, on a new trial, do not depend solely on the fact that he has recovered a more favorable judgment, but on the fact whether his notice of appeal was sufficient (Forsyth v. Ferguson, 27 How. 67).
f. Set-off of costs against recovery (Ecans v. Vance, 2 Barb. 598; Johnson F. Farrell, 10 Abb. 384).
g. Costs on appeal in the marine court (Lewis v. Fox, 11 Abb. 134, 281; 19 How. 561 ; 20 How. 96, note).
h. Costs when appeal heard in the supreme court.- Where an appeal from a judgment rendered by a justice of the peace is heard by the supreme court, because of the incompetency of the county judge to hear the appeal, the successful party will recover the same costs as if the appeal had been decided by the cou judge (Taylor v..Seeley, 4 How. 314; O'Callaghan v. Carroll, 16 How. 327).
Of the Miscellaneous Proceedings in Civil Actions, and General
CHAPTER 1. SUBMITTING A CONTROVERSY WITHOUT ACTION.
II. PROCEEDINGS AGAINST JOINT DEBTORS, HEIRS, LEGATEES,
DEVISEES AND TENANTS HOLDING UNDER A JUDGMENT
OR A PART OF THE ACTION,
Submitting a controversy without action.
SECTION 372. Controversy, how submitted without action.
373. Judgment, how entered.
$ 372. Controversy, how submitted without action.
Parties to a question in difference, which might be the subject of a civil action, may, without action, agree upon a case containing the facts upon which the controversy depends, and present a submission of the same to any court which would have jurisdiction if an action had been brought. But it must appear, by affidavit, that the controversy is real, and the proceeding in good faith to determine the rights of the parties. The court shall thereupon hear and determine the case, at a general term, and render judgment thereon, as if an action were depending.
a. A proceeding under this section is not an action (Lang v. Ropke, 1 Duer, 702). No authority is contained in this section for the submission of actions; it relates solely to the submission of questions of difference without action; and where an action was commenced, and a case, containing the facts upon which the controversy depended, was agreed upon and submitted, it was held that if the action was not thereby discontinued, it must be when a submission is followed by a judgment (Van Sickle v. Van Sickle, 8 How. 265).
a. There is no authority for the appointment of a guardian for an infant, for the purpose of submitting a controversy without action; and an infant
; cannot consent to such submission (Fisher v. Stilson, 9 Abb. 33).
b. The court can only determine the questions of law that arise upon the facts agreed upon, and has no power to send the cause to a jury for the determination of questions of fact, that, upon the face of the submission, may appear to be doubtful. The court must itself construe the submission (Neilson v. Com. Mut. Ins. Co. 3 Duer, 455).
c. On judgment at general term in favor of defendant, he is not entitled to costs for any proceeding before notice of trial, nor to a fee before argument, nor for argument; but he is entitled to a trial fee (id. 683).
d. The plaintiff must furnish the necessary papers for argument. Rule 43.
$ 373. Judgment.
Judgment shall be entered in the judgment-book, as in other cases, but without costs, for any proceeding prior to notice of trial. The case, the submission, and a copy of the judgment shall con
, stitute the judgment-roll.
$ 374. Judgment, how enforced or appealed from.
The judgment may be enforced in the same manner as if it had been rendered in an action, and shall be subject to appeal in like manner.
Proceedings against Joint Debtors, Heirs, Devisees, Legatees,
and Tenants holding under a judgment debtor.
SECTION. 375. Parties not summoned in action on joint contract may be
summoned after judgment. 376. If judgment debtor die, his representatives may be sum
$ 375. (Am'd 1849.) Parties not summoned in action on joint contract may be summoned after judgment.
When judgment shall be recovered against one or more of