COMANCHE MERCANTILE CO. v. J. FLOERSHEIM CO.

COMANCHE MERCANTILE CO. v. J. FLOERSHEIM CO.
1915 OK 750
152 P. 104
51 Okla. 590
Case Number: 4849
Decided: 10/05/1915
Supreme Court of Oklahoma

COMANCHE MERCANTILE CO.
v.
J. FLOERSHEIM COMPANY.

Syllabus

¶0 JUSTICES OF THE PEACE -- Appeal Bond -- Inaccuracy -- Effect. Where a party to an action in a court of a justice of the peace recovers judgment for less than he demanded, which fact is not expressly recited therein, the same is, nevertheless, by necessary implication, against him to the extent of his demand in excess of the amount of such judgment; and such party's appeal bond, under section 4765, St. 1893 (section 5466, Rev. Laws 1910), is not insufficient merely because it describes such judgment as against him, instead of more accurately as against him only in part, or, by necessary implication, to the amount of $ 22.45, the balance of his demand in excess of the amount of such judgment.

Error from County Court, Stephens County; W. H. Admire, Judge.

Action by the J. Floersheim Company, a corporation, against the Comanche Mercantile Company, a corporation. Judgment for plaintiff, and defendant brings error. Affirmed.

H. B. Lockett, for plaintiff in error.
J. P. Speer, for defendant in error.

THACKER, C.

¶1 The plaintiff in error (Comanche Mercantile Company, a corporation) will be designated as defendant, and defendant in error (J. Floersheim Company, a corporation), as plaintiff, in accord with their respective titles in the trial court.

¶2 The plaintiff originally commenced this action in the court of a justice of the peace of Stephens county against the defendant for $ 92.87, and recovered judgment only for $ 35.21, which judgment was, by necessary implication, against the plaintiff for $ 57.66, the balance of the amount claimed for which he did not recover.

¶3 An appeal was taken by the plaintiff to the county court of said county; and, instead of describing the judgment as above in the appeal bond, it is therein recited:

"The condition of the above obligation is such that, whereas the said J. Floersheim & Co. intends to appeal to the county court within and for said county from a judgment rendered against him in favor of Comanche Mercantile Company in the justice court of said county on the 4th day of May, A. D. 1912, at Comanche, in said county."

¶4 In the county court the defendant moved to dismiss said appeal upon the ground that the foregoing recital is incorrect and renders the bond insufficient under section 4765, Stat. 1893 (section 5466, Rev. Laws 1910). The county court overruled said motion, the plaintiff recovered judgment for $ 92.66, and the defendant brings the case here for review, assigning as error only the overruling of said motion.

¶5 The county court did not err. The judgment in terms was in favor of the plaintiff; but in legal effect it was against it for $ 57.66, the balance claimed for which it failed to recover. The appeal bond was sufficient.

¶6 For the reasons stated, the judgment of the trial court should be affirmed.

¶7 By the Court: It is so ordered.