This cause originated before a justice of the peace, the amount involved being less than $100. Defendant Stinson appealed to the county court of Morgan, where again judgment was rendered for plaintiff, appellee.
The objection taken to the act of September 24, 1919 (Local Acts, p. 194), establishing the county court of Morgan county, on constitutional grounds was considered and adjudicated against appellant's contention in Polytinsky v. Wilhite,211 Ala. 94, 99 So. 843. The line of cases in which stand Roper v. State, 210 Ala. 440, 98 So. 286; Brame v. State, 148 Ala. 629,38 So. 1031; and Wallace v. Board of Revenue, 140 Ala. 491,37 So. 321, does not appear to have been considered in Polytinsky v. Wilhite, supra, Without undertaking to state what might have been the effect of these cases, if considered, the court is now of opinion that the decision in the case last named must stand as an adjudication on the facts there shown.
The jury's verdict was crudely drawn, but, upon inspection of the original, this court is of opinion that the trial court's interpretation of it was permissible. It was so read in the presence and hearing of the jury and adopted by them as a true reading of their verdict. Judgment accordingly was properly entered.
It is clear that somebody, the jury, we may concede, used a statement of appellee's account against appellant for the purpose of making thereon a calculation of the amount due from appellant to appellee at the time of the trial. If there was anything wrong in this, it was not made to appear at the hearing of the motion for new trial. Nor was this matter otherwise brought to the attention of the trial court.
That ground of the motion which alleged that defendant (appellant) had no notice of the time and place of holding the court is shown to be not well taken in fact.
The verdict and judgment in the county court exceeded by $3 the amount claimed in the complaint and interest to the day of the trial. The verdict makes it plain that this excess was due to the error of the jury in assessing the reasonable attorney's fee at $18, whereas plaintiff claimed $15 only on that account. We cannot know how insistently the attention of the trial court was called to this error; but defendant's motion for a new trial took the point, and, as for anything brought to our attention, the judgment should have been amended or set aside.
It has sometimes been held that a new trial may properly be denied where the difference between the amount claimed to be correct and that found by the verdict is small. 29 Cyc. 838, where cases are cited. But this is a relative proposition, comparative values must be considered. So considered in this case, we are not of opinion that the difference here shown should be ignored by the court. The damages were liquidated; the error was plain, and appellee should have joined in setting the judgment right when the error was brought into relief by defendant's motion. Richardson v. Birmingham Cotton Mfg. Co.,116 Ala. 381, 22 So. 478. Accordingly the judgment will be reversed and the cause remanded, unless the plaintiff, within 20 days from this date, shall remit damages in excess of $89.95; but, upon such remittitur entered of record, the judgment, as so reduced, will be affirmed, at the cost of appellee.
Reversed conditionally.
All the Justices concur. *Page 471