People ex rel. Mallard v. Judges of Madison County

Majority

p. 423

The People, ex rel. Mallard, against The Judges of Madison County.

UTICA,

August, 1827.

Headnote

Where an quashed,ordisof jurisdiction, powertoaward any c°sts be; yond those of the motion.

Not having jurisdiction of the cause, it faila as *° sen" eral costs.

The return' to the alternative mandamus granted in February term last, as stated in 6 Cowen, 593, S. C., agreed substantially with the facts mentioned there, except that now it was shown affirmatively, that the appellee did not discover the defect in the bond till during the trial; and lust before the motion to dismiss the appeal.

J. Foote moved for a peremptory mandamus.

P. Gridley, contra.

The case is not essentially varied from what it was upon the affidavits originally presented. It was the business of the appellee to search, and find out whether the proceedings were regular or not, in the first instance; and before the cause was noticed a third time for trial. This consideration alone is sufficient to deny him costs, beyond those of the motion to quash.

But we go on another ground in this class of cases. The appeal is dismissed for want of jurisdiction in the cause. Mot having jurisdiction of that, the general costs cannot be ^awarded. They are incident to the cause. Jurisdiction failing as to the principal, it must also fail as to the incident. All that remains, is a jurisdiction of the parties and motion, as to which motion alone, costs can be given.

Peremptory mandamus granted.