Hauselt v. Bonner — 3 Silv. Sup. 121

Majority

p. 121

Charles Hauselt, Appellant, v. David Bonner, Respondent.

Supreme Court, First Department, General Term,

July 9, 1889.

Headnote

Judgment.—The proper practice, where a judgment already entered does not include the whole recovery, is to open the judgment, tax costs and enter proper judgment.

Appeal from an order denying motion to vacate taxation of costs.

Lewis Sanders, for appellant.

P. Stevenson, for respondent.

The taxation was irregular and should have been set aside. At the time it was attempted, judgment had already been entered in favor of the successful parties upon the previous appeal, including Mr. Bonner. This it seems was done by Mr. Fine, who was not the attorney for Bonner. The judgment of the court, however, which was duly entered, was that the defendants, including Bonner, recover of the plaintiff $67.88, and that they have execution therefor.

While this judgment stood, Mr. Stevenson could not enter another judgment in favor of Bonner for an additional sum, nor could Bonner’s costs be again taxed. His proper practice was to have the judgment corrected and then to tax his. costs "and enter a proper judgment.

The order should be reversed, with ten dollars costs and disbursements, and the motion to vacate the taxation granted, without costs and without prejudice to the application and practice above suggested.

Appeal from order denying motion to set aside execution.

p. 122

Lewis Sanders, for appellant.

Preston Stevenson, for respondent.

The order should be affirmed, with ten dollars costs and disbursements, on the opinion of Mr. Justice Ingraham in the court below.