¶1The opinion of the court was delivered by
¶2Whether this action was appealable must depend upon a reasonable construction of the statute. The statute, in restricting appeals, provides that an appeal shall not be allowed in actions upon notes, and accounts stated, of an amount not exceeding twenty dollars. This is an action upon two notes of less than twenty dollars. There was also the common count, for money had and received, for twenty dollars. The question here presented is, whether this is an action upon note of an amount less than twenty dollars.
¶3In the first place, the notes might be given in evidence under the common count. In the next place, no evidence was offered under that count. And in the third place, the plaintiff abandoned that count before judgment. The plaintiff treated this as an action upon the notes; he had a right so to treat it; and that being so, neither plaintiff nor defendant had a right to appeal. Suppose the plaintiff had not described his notes in his writ, but had simply declared for money had and received, claiming thirty dollars, and had given these notes in evidence in support of his claim, and had offered no other evidence; — in that case, if judgment had been rendered against him, would the plaintiff have been entitled to an appeal? If he would, the form of declaring, and not the nature and amount of the claim, would determine the right of appeal, — which we think is not the reasonable construction of the statute.
¶4Judgment affirmed.