¶1delivered the opinion of the court.
¶2There is no error in the rulings and judgment of the trial court upon the merits of this case; but the case must he reversed, unless a remittitur is entered in this court.
¶3*823This was an action on a promissory note, begun in the court of a justice of the péace. The plaintiff in that court was defeated, and therefore recovered nothing, whereupon he appealed to the circuit court. The circuit court rendered a judgment for the plaintiff for the amount of his claim plus ten per cent, damages. This was an error, as Sec. 86 of the Code of 1906 has no application to an appeal of a defeated plaintiff, but refers to a. defendant, who appeals from the judgment of a justice of the peace and fails to make good in the circuit court.
¶4Affirmed with remittitur.