Majority
p. 657Nelson vs. Montgomery and others. July 1. 1833.
Headnote
If a wrong party be inserted in a bill and the solicitor for the complainant has stipulated that such party shall be paid the costs of putting in an answer, payment of them will not be ordered out of a surplus, but the same must be borne by such solicitor. In this case, they had not been provided for by the decree.This was a bill of foreclosure. The complainant, in searching for liens, had found a judgment in favor of the United States against one Moses Jarvis ; and, presuming it to relate to the defendant Moses W. Jarvis, the United States was made
p. 658
a party. The district attorney had received a written stipulation, from the solicitor for the complainant, that his costs of appearing and putting in an answer should be paid to him. It turned out that this “ Moses Jarvis” was not the defendant Moses W. Jarvis ; and the costs of the district attorney were forgotten to be inserted in the decretal order.
The complainant had been paid through a sale; and a surplus remained in court.
Mr.--for the complainant,
now moved that the costs of the district attorney, which he was under a stipulation to pay, might be paid out of the surplus.
Mr. P. T. Ruggles, for defendants claiming, the surplus.
I am of opinion the costs of the district attorney for the United States are not a charge upon the surplus money in court. The consequences of making a wrong party to the bill, coupled with the stipulation, require that payment of these costs should be borne by the complainant or his solicitor. They ought not fall upon a party entitled to the residue.