Dows v. Boughton — 3 Hill & Den. 452

Majority

p. 452

Dows and others vs. Boughton and others. The same vs. The same.

Headnote

Where, after judgment and execution against a defendant, he was let in to defend on terms, the judgment and execution to stand as security, and the plaintiff" afterwards obtained a verdict; held, that the latjcr was entitled to an order upon the defendant to pay the taxed costs of the proceedings subsequent to the judgment, on demand, or that an attachment issue against him.

judgments in these actions had been perfected for the plaintiffs, and executions had been issued, ¡je defendants, on application to the court, were let in to d-fend on terms, and the judgments and executions were ordered to stand as a security. Dn trying the actions the; plainlilfs obtained verdicts in their favor, which the defendants lhuve(j to set as¡dCj byt the motions werejenied. The plaintiffs taxed the costg of the proceedings SllbseqCnL^ JlmfE-cnts; and a motionon their behalf was now made for an order that the defendants pay those costs, or that an attachment issue against them.

D. Burwell, for the defendant said,

the cost ought to be collectedby execution defendants, said, the costs ought to bo and not by attachment; otherwise the

p. 453

defendants might be imprisoned in a case where imprisonment for debt had been abolished. The judgment record may be amended so as to include these costs, or a second judgment may be entered by way of suggestion on the record, and the costs be collected by execution against the defendants’ property.

We cannot amend the record by increasing the amount of the recovery, without endangering the lien which the plaintiffs have obtained by docketing the judgment; and by amending the writ offieri facias now in the sheriff’s hands, we might, perhaps, affect the levy upon personal property. As to rendering a second judgment in the same suit, either by way of suggestion or otherwise, I am not aware of any precedent for such a practice, exceptan the actions of account and partition, and I think it cannot be done. The defendants were let in to defend as a matter of favor after a judgment had been regularly entered against them, and if they will not now pay the additional costs to which the plaintiffs have been put, they can have no just ground for complaint if the payment of those costs is enforced in-the only way which will not work any further prejudice to the plaintiffs than they have already suffered by the delay of their proceedings. Under the former practice of the court, there can be no doubt that these costs might be collected by attachment, and where there was formerly a remedy of that kind it may still be pursued. (2 R. S. 534, § 1, sub. 8.) And this is so, although the party has an adequate remedy in another form. (Brockway v. Copp, 2 Paige, 578.) On service of a copy of the order now to be made, and a demand of the costs which have been taxed, the defendants must pay the same, with the costs of this motion, or an attachment may issue against them.

Ordered accordingly.