Majority
p. 546Dockstader vs. Sammons.
Headnote
Though a public officer against whom a judgment has been obtained for an act done by virtue of his office brings error and reverses the judgment, he is not en. titled to double costs upon the writ of error.Double costs. Dockstader, a constable, having taken certain goods in execution, Sammons brought replevin for them in the Montgomery C. P., and recovered judgment. Dockstader sued out a writ of error, whereupon this court reversed the judgment; and now
S. Stevens, for the plaintiff in error,
moved for double costs upon the writ of error, on the ground that the suit was for an act done by the plaintiff in error (the defendant below) in virtue of his office as constable.
JV. Hill, Jr. contra.
J. W. Jenkins, {ut amicus curice,) observed,
that a similar
p. 547
motion was made in the case of Harp v. Stuart about three years since, and denied.
I am of opinion that the statute relating to double costs in suits against public officers (2 R. S. 617, § 24, subd. 1) does not apply to a case of this kind. The provision is, that double costs may be recovered by the defendant, where judgment is rendered in his favor upon verdict, demurrer, writ of error &c. Here the plaintiff in error—not the defendant— asks for double costs. My recollection is that this question was passed upon by the court some time ago.
Cowen, J. That is probably the case to which I referred. I think it was submitted to all the judges in consultation, and that we concurred in denying the motion for the reasons already stated.
Motion denied.