#### George D. Henry v. The Chicago, Rock Island & Pacific Railway Company, Appellant.

1 Justices of the peace: appeal: jurisdictional amount. In an action before a justice of the peace, a remittitur made before entry of judgment, of all claims, in excess of $25.00, precludes *578an appeal even though the justice enters judgment for more than that amount.

2 Correction of justice’s record on appeal. On appeal from a justice, the appellate court may supply the justice’s omission to enter of record an oral remittitur of all claims in excess of $25.00, upon a showing that such remittitur was made.

*Appeal from J efferson District*Court.— HoN. Robert SloaN, ■ Judge.

Friday, June 9, 1905.

The plaintiff commenced two suits before a justice 'of the peace, in one of which he asked a judgment for $30.35, and in the other judgment for $33. Default was made in both, and before judgments were entered the plaintiff orally remitted in each .case the amount claimed in excess of $25, and judgment for said sum, with costs, was entered in each case. The costs included an attorney’s fee also. The rer mittitur was not entered on the docket, and the defendant appealed in both cases. After they had reached the district court, the plaintiff tiled motions to supply the omissions of the- justice in his docket entries, and to dismiss for want of jurisdiction after the omissions were supplied. The court heard evidence as to the remittitur before the justice. It was undisputed, and the omissions were unquestionably established. Thereupon both appeals were.dismissed, and the defendant appeals in both cases.

*Affirmed.*

*CarroU*Wright, *John-1.*Dille, and *R. J.*Wilson, for appellant.

*Ralph S.*Munro, for appellee.

SherwiN, C. J.

No appeal from a justice of the peace shall be allowed when the amount in controversy does not exceed $25. Code, section 4547. Ordinarily the amount in controversy is determined by the pleadings, or by the respective oral claims of the parties to the suit. *Lundak v. C.*
      *579
      *& N. W. Ry. Co.,*65 Iowa, 473; *Sterner v. Wilson,*68 Iowa, 714. But this is not always tbe test. Thus, in *Young v. McWaid,*57 Iowa, 101, tbe defendant admitted a part of tbe plaintiff’s claim by tender, and it was held that tbe amount in controversy was tbe claim contested by tbe parties, and not tbe original claim. In *Milner v. Gross,*66 Iowa, 252, tbe justice rendered a judgment for $35, and afterwards, on tbe same day, and before an appeal was taken, tbe plaintiff remitted all thereof in excess of $24.99. It was beld that tbe remittitur discharged all of tbe debt in excess of $24.99, and that an appeal would not lie. The rule is followed in *Bateman v. Sisson,*70 Iowa, 518; *Vorwald v. Marshall,*71 Iowa, 576; *Knox v. Nicoli,*97 Iowa, 687; *Young v. Stuart,*104 Iowa, 597.

It is contended that there was no authority for allowing an attorney’s fee as a part of tbe costs, and that consequently tbe judgment was in fact for $35 and tbe costs. It is apparent that tbe justice undertook to make tbe attorney’s fee a part of the costs, but, however this may be, the remittitur renounced all claim for judgment in excess of $25, and, under tbe authorities cited, an appeal will not lie, even though tbe justice render judgment for more than is claimed. *Young v. Stuart, supra.*

Section 4557 of tbe Code provides that, “where an omission or mistake has-been made by tbe justice in bis docket entries, . . . the court to which tbe appeal is taken may correct tbe mistake or supply tbe omission or direct tbe justice to do so.” This section is authority for supplying tbe omission to enter tbe oral remittitur upon unquestionable proof that it was made, and, if the justice after such re-mittitur made a mistake’ in bis docket entries, it will not change tbe rule as to tbe amount in controversy or as to tbe right to appeal.

Tbe appeals were rightly dismissed, and tbe judgments in both cases are *affirmed.*