dissenting.
My judgment differs so widely from that of the majority of the court, as expressed in the foregoing opinion, that I think it but due to myself briefly to give the reasons for my dissent. This difference of opinion, I may say at the outset, seems to be occasioned chiefly by my inability to comprehend what appears to be clear to my brother judges, that under any circumstances the constitutional and statutory expressions “ county courts ” and “justices of the peace ” are equivalent, and mean precisely the same tribunal.
The clause of the statute applicable to the question before the court is in these words: “ If it shall appear that a justice of the peace has jurisdiction of an action, and the same has been brought in any other court, the plaintiff shall not recover costs.”
This statute was first construed, if giving effect to language so plain can be called construction, in the case of Geere v. Sweet, 2 Neb., 76, which was commenced in the district court, and in which the plaintiff recovered a judgment for $84.58, a sum within the jurisdiction of that court, but of which, under the statute, a justice of the peace also had concurrent jurisdiction; and it was held, on error to this court, that there could be no recovery of costs. In giving the decision of the court, following that of Brunaugh v. Wooley, 6 Ohio State, 597, Mason, Ch. J., said: “It seems to me plain that where it appears that- at the commencement of the action a justice of the peace has jurisdiction * * * whether concurrent or ex-*267elusive, and the plaintiff brings his action in any other court, he cannot recover his costs.”
Again, in Beach v. Cramer, 5 Neb., 98, in which the action was, as here, commenced in the probate (county) court, the same question was again raised, and precisely the same conclusion arrived at. This decision, as embodied in the opinion of Maxwell, J., fully sustains Geere v. Sweet, as will be seen by the following quotation, viz.: “ But while the amount claimed in the petition or bill of particulars determines the jurisdiction, yet the court, having acquired jurisdiction of the subject matter and the parties, if the verdict is less than $100, the plaintiff is entitled to judgment thereon, but the court can render no judgment for costs. * * * This question was before this court in Geere v. Sweet, 2 Neb., 77, and the decision in that case meets our approval.”
And still again in Ray v. Mason, 6 Neb., 101, in which the action below was commenced in the probate court to recover the sum of $100 and interest, alleged to be due on a promissory note, and wherein, on appeal to the district court, the plaintiff had judgment in his favor for $8 and his costs, that judgment having been brought here by petition in error, the decision of the court was that no costs were recoverable, and the judgment of the court below was modified accordingly. The views then entertained by this court are found in the opinion of Maxwell, J., in which is found this language of clear and unmistakable import: “ The only error that can be considered in this case is the taxation of costs to the defendant. In this there is error. The rule is well established in this court that if a justice of the peace has jurisdiction of an action, and it has been brought in any other court, the plaintiff shall not recover costs.”
Now it does seem very clear to my mind that, if *268these several decisions speak the law correctly, the judgment now under review, as to the defendant in error’s costs,is erroneous. The amount recovered is $15, of which, it cannot be questioned, “ a justice of the peace has jurisdiction; ” and the action was certainly commenced in “ another court,” viz.: the county court of Sarpy county. That a county court is an entirely distinct tribunal from that of a justice of the peace seems too clear to admit of any argument. The distinction is not in name alone, but it is constitutional— radical. The fact that in some matters county courts have concurrent jurisdiction with justices of the peace is entitled to no weight in the decision of this question, for that could have been urged with equal propriety had the case been commenced in the district court.
The construction given to this statute by the majority of the court is just what might have been expected if, instead of what it is, its language were, if a justice of the peace have jurisdiction, and the action has been brought in any other court, except one having and exercising concurrent jurisdiction with justices of the peace, the plaintiff shall not recover his costs. Such being its effect, I am of opinion that the conclusion reached by my brother judges is not only in direct conflict with the prior decisions of this court, as well as of the supreme court of Ohio, on the same question, but does violence to the plain simple words and spirit of the statute above quoted.
Reference is also made in the opinion to the fact that no motion was made in the court below to have the costs re-taxed. But that step was unnecessary to entitle the plaintiff in error to the relief sought. If the costs had been taxed contrary to the judgment there would have been force in- this point. The costs, however, were taxed as they only could be under the *269judgment; and it has never been held that, in order to entitle a party to have a final judgment reviewed in this court, he must ask the court rendering it to correct the errors complained of. Indeed, it is not necessary even to except. Black v. Winterstein, 6 Neb., 224.
Eor these reasons I am of the opinion that the judgment, as to the costs, ought to be reversed.