Votan v. Reese.

maturity was necessary to prevent the plaintiff from enforcing it. The first of the notes became due and was not paid, and the action was commenced before the second note had matured. The defendant contends that the suit was prematurely brought, and that the remedy as against him was suspended until the maturity of the second note. This position is obviously incorrect, for the notes were taken upon the understanding that they were to be paid according to their terms, and the failure in respect to the first note entitled the plaintiff to put an end to the transaction. The agreement on his part was to receive payment in a particular manner, and the contract ceased to be binding upon default of payment in the manner agreed on.

The point in relation to the sale of the notes is not well taken. It appears that the notes were sold, or attempted to be sold, under execution, but this occurred after the commencement of the suit. The plaintiff had then elected what remedy to pursue, and the notes remaining in his possession and were delivered up at the trial. Judgment affirmed.

VOTAN v. REESE et al

Ix determining whether the "matter in dispute" is sufficient to give to the Supreme Court jurisdiction of an appeal, the costs of the action cannot be considered. Costs are merely incidental to the action, and constitute no part of the matter in dispute.

To give this Court jurisdiction of an appeal in an action simply for money or damages, where no question as to the legality of a tax, toll or municipal fine is involved, if the appeal is by the defendant, the judgment, exclusive of costs, must exceed two hundred dollars; if the appeal is by the plaintiff and the verdict is for the defendant, it will be sufficient if the amount claimed by the complaint exceeds that sum; If the appeal is by the plaintiff and the verdict is for him, the difference between its amount and that claimed must exceed that sum.

When the Supreme Court has obtained jurisdiction of the case by appeal from a sufficient judgment, it can then correct the costs, which are inserted in the judgment, as to any item which is improperly charged.

APPEAL from the Sixteenth Judicial District.

Votan v. Reese.

The facts of the case are sufficiently stated in the opinion of the Court.

Humphrey Griffith, for Appellants.

Tod Robinson, for Respondent.

FIELD, C. J. delivered the opinion of the Court-COPE, J. and NORTON, J. concurring.

This action was brought to recover damages for injuries to the property of the plaintiff, occasioned by a ditch constructed by the defendants, and to obtain a judgment of the Court declaring the ditch a nuisance, and directing the defendants to fill it up. The jury gave a verdict for the plaintiff, and assessed his damages at one hundred dollars, but added a special finding that the ditch was not a nuisance. Upon the verdict, judgment was entered for the plaintiff for one hundred dollars, and costs taxed at one hundred and seventy-four dollars and forty cents. To so much of the judgment as awards costs to the plaintiff, the defendants objected, and moved for judgment for costs in their favor; but the Court overruled the objection and motion, and hence the present appeal.

The position of the appeallants is, that the jury having found that the ditch was not a nuisance, the case is to be regarded, so far as the costs are concerned, as a simple action for damages for injuries to the property of the plaintiff. If this position be correct, no costs were taxable to either party under the statute, the damages recovered being less than two hundred dollars. (Pr. Act. sec. 498.) And further, we have no appellate jurisdiction to review the ruling of the Court below. In actions simply for money or damages, where no question as to the legality of a tax, toll, impost or municipal fine is involved, this Court has appellate jurisdiction only in cases where the matter in dispute exceeds two hundred dollars. Costs are merely incidental to the action. They constitute no part of the matter in dispute. To enable us, therefore, to review the ruling of the Court below upon the subject of costs, in an action of this character, where the defendant appeals, the judgment, independent of costs, must exceed two hundred dollars. Where the plaintiff is appellant in such action, if the verdict be for the defend

Gage v. Rogers.

ant, it will be sufficient if the amount claimed by the complaint exceeds that sum; or if the verdict is for the plaintiff, if the difference between its amount and that claimed exceeds that sum. (Gillespie v. Benson, 18 Cal. 411.) When we have obtained jurisdiction of the case by the appeal from the judgment, we can proceed to correct the costs which are inserted in the judgment, as to any item which is improperly charged. We can interfere in no other

way.

Appeal dismissed.

GAGE v. ROGERS et al.

A JUDGMENT by default for an amount exceeding that asked for in the prayer of the complaint is erroneous.

Where the complaint prayed judgment for a certain amount, then alleged to be due, as principal and interest of the note sued on, and that the judgment bear interest at a certain rate, and judgment by default was subsequently rendered for the amount, with interest from the date of filing the complaint: Held, that the judgment was erroneous, in awarding interest from the date of filing the complaint instead of the date of its entry.

APPEAL from the Fifth Judicial District.

The facts are stated in the opinion of the Court.

Geo. W. Tyler, for Appellant.

Baine and Bouldin, for Respondents.

NORTON, J. delivered the opinion of the Court-FIELD, C. J. concurring.

This is an action to foreclose a mortgage given to secure the payment of a note for $3,000, with interest at two and one-half per cent. a month, to be compounded if default was made in payment of the monthly interest. The complaint was filed on the thirteenth day of November, 1861, at which time the principal and interest due amounted to the sum of $4,968.70, and the complaint prays for a judgment for that sum, and that the judgment bear interest at

Plant v. Fleming.

the same rate. A default having been entered, for want of an answer, a judgment was entered on the fourteenth day of January, 1862, for the sum of $4,968, with interest thereon at the rate of two and one-half per cent. a month from the said thirteenth day of November, 1861. From this judgment an appeal is taken, and the error assigned is, that by adjudging interest to run on the judg ment from November 13th, 1861, the day the complaint was filed, instead of from January 14th, 1862, the day of entering judgment, the relief granted exceeded that which was demanded in the complaint, contrary to the provision of section one hundred and forty-seven of the Civil Practice Act. The error has arisen from a slight inadvertence in demanding a judgment for the precise sum due, including interest, at the time of filing the complaint, and not asking interest from that time until the entry of the judgment, but only that the judgment shall bear interest. Alhough the difference between the sum recovered and that to which the party was entitled under a prayer properly framed is not large, yet strictly the judgment was erroneous under the operation of section one hundred and forty-seven. The judgment appealed from is therefore modified so as to adjudge interest on the sum recovered, to wit: the sum of $4,968, to run at the rate of two and one-half per cent. a month from the date of the judgment, instead of from the thirteenth day of November, 1861; and the cause is remanded for further proceedings, with costs of this appeal to the appellant.

PLANT v. FLEMING et al.

A PLAINTIFF can voluntarily submit to a nonsuit before a referee in a case where no counter claim is set up by the defendant.

Under a reference to try the issues and report a judgment, the referee can exercise all the powers of a Judge in relation to the trial of the cause referred to him,

APPEAL from the Eleventh Judicial District.

Action brought on a promissory note to recover $3,100. Defend

Plant v. Fleming.

ant answered, admitting an indebtedness of $1,100, denying the balance, and making no counter claim.

The case was by consent referred to a referee to take the testimony and report a finding of facts and a judgment. After evidence on both sides had been introduced, and the parties had rested, the plaintiff asked leave to take a nonsuit, which motion was, by the referee, overruled pro forma, and judgment rendered in favor of plaintiff for $1,100, and exception taken.

On the coming in of the report, plaintiff renewed his motion for a nonsuit, which was refused by the Court, and judgment entered in accordance with the report.

Plaintiff moved for a new trial, assigning as cause, error in the refusal by the referee and the Court to grant his motion for nonsuit, and from the order overruling the motion for new trial this appeal is taken.

Humphrey Griffith, for Appellant.

John Hume, for Respondent.

FIELD, C. J. delivered the opinion of the Court-COPE, J. and NORTON, J. concurring.

The only question presented for determination on the appeal is, whether a plaintiff can voluntarily submit to a nonsuit before a referee, after the proofs are closed, in a case where no counter claim is set up by the defendant. We have no doubt that under our statute the referee, upon a reference to try the issues and report a judgment, can exercise all the powers of a Judge in relation to the trial of the cause referred to him. For the purposes of the trial he takes the place of the Judge, and not only possesses the power, but upon the abandonment of the cause by the plaintiff before its final submission, or upon the motion of the defendant when the plaintiff fails to prove a sufficient cause, it is his duty to grant a nonsuit, and to report his judgment to that effect. (Practice Act, secs. 148, 182 and 188.)

Judgment reversed and cause remanded for a new trial.