Majority
p. 395Shepard vs. Hoit.
Headnote
After judgment on a verdict in favor of the defendant, he will not be allowed to amend the record so as to include the costs of opposing a subsequent motion for a new trial.But where it appeared that the plaintiff resided out of the state, the court allowed the defendant to withdraw the former record, cancel the docket, and perfect a new judgment for the whole amount of his costs, in order that he might collect them by action on the judgment.
The ' defendant, having obtained a verdict, perfected judgment for costs against the plaintiff in August, 1842. The plain* tiff subsequently moved for a new trial, which was denied with •costs; and the defendant, upon an affidavit of these facts, and that the plaintiff resides out of the state, now moved for leave
p. 396
to insert in the record a judgment for his additional costs, or to strike out of the record the amount of the costs formerly-taxed, and insert the foil amount to which he had become entitled, in order that he might collect them by action on the judgment in the state where the plaintiff resides.
R. H. Gillet, for the motion.
E. A. Brown, contra
The defendant’s object cannot be effected by a suggestion on the record and a second judgment for these costs; (Dows v. Boughton, 3 Hill, 452 ;) and to amend the record now on file, by striking out the amount of the costs inserted in it and substituting the true sum, might lead to confusion. I see no objection, however, to talcing that record from the files and cancelling the docket; and then the defendant may file a new record for the full amount of his costs, to be settled by the taxation of a new bill.
Ordered accordingly.