1. Section 8, article 6, of the constitution of this 'state provides that “no justice of the peace shall have jurisdiction of any civil cause where the amount in controversy shall exceed one hundred dollars. ” In the meaning of this section, the words “the amount in controversy” do not include the costs of litigation. They have reference to the subject of the litigation, of which the costs are a mere incident.
2. The evidence was certainly sufficient to sustain the find, ing of the unlawful and wrongful taking and detention charged in the complaint.
3. By Gen. St. 1878, c. 65, § 117, upon an appeal from the judgment of a justice of the peace, to the district court, upon questions of law alone, “ the action shall be tried in the district court upon the return of the justice.” “A trial is the judicial examination of the issues between the parties, whether they are issues of law or of fact.” Gen. St. 1878, c. 66, § 214. Upon the appeal upon questions of law alone, then, a judicial examination of the controversy between the parties is to be had upon the return of the justice. If, upon such examination, errors of law appear by which the appellant is aggrieved, and which show that the judgment is, in part, erroneous, the judgment may be so modified as to correct the error, if the erroneous part is distinct and separable from the rest of the judgment. State v. Bliss, 21 Minn. 458; Hinds v. American Express Co., 24 Minn. 95.
4. The defendant appealed from the judgment of the justice to the district court in this case. Not having succeeded in the district court in reducing the amount of the plaintiff’s recovery before the justice one-half or more, the plaintiff is entitled to his costs and disbursements in the district court. Gen. St. 1878, c. 67, § 14.
5. The plaintiff not having appealed from the judgment of the district court, we cannot consider the alleged error of which he complains.
Judgment affirmed.