Hoyt v. Blain — 12 Wend. 188

Majority

p. 188

Hoyt and others vs. Blain.

Headnote

Where a plaintiff, who had a verdict in assumpsit for less than $50, and was not entitled to costs, sued out a scire facias, and obtained a judgment there, in, as well for costs as for the damages in the original suit, the defendant not having appeared to the scire facias, under the impression that the plaintiff could not recover costs, and with the knowledge that the costs, which he was entitled to demand of the plaintiff, exceeded the damages, the proceedings upon the scire facias were set aside, on the ground that they were had mala fide, the plaintiffs knowing that there was nothing due to them.

Where a scire facias is prosecuted in good faith in a proper case, costs follow the recovery of judgment, be the amount of recovery ever so small.

The plaintiffs, in June, 1830, obtained a verdict against the defendant for #30,51 in an action of assumpsit, the demands exhibited on the trial not being such as entitled the plaintiffs to costs. The defendant supposing that his costs would be a full set-off against the damages, and the plaintiffs being insolvent, suffered the matter to sleep. In the autumn of 1833, he was served with a scire facias quare executionem non; when, being advised that the plaintiffs would not be entitled to costs in the scire facias suit, he took no measures to defend the same, until January, 1834, when he was called upon by the sheriff with an execution reciting a judgment for the damages, viz. #30,51, and also for #20,05, the costs and charges expended by the plaintiffs by reason of the delay of execution &c. and directing the levy of the same. In February this court stayed all proceedings on the execution, and gave leave to the defendant to move for costs in the original action, and that the same be incorporated in the record filed

June 5.

p. 189

by the plaintiffs. The motion having been made, the following was the decision of the court thereon :

By the Court,

The sum recovered by the plaintiffs in the original action was not sufficient to entitle them to costs; the defendant was therefore entitled to judgment against the plaintiffs for his full costs in this court, 2 R. S. 615, § 16, the case not falling within any of the exceptions mentioned in § 8 and 9. The cause having been tried at the circuit, the defendant’s costs undoubtedly exceeded the plaintiff’s recovery, and nothing was due to them. In such a case there is to be but one record, which gives judgment to the plaintiff for the damages recovered, and for the defendant for his costs ; if the plaintiff refuse to make, up such a record, the defendant upon application to the court, will have leave to do it. In this case, the defendant’s attorney knowing that his costs exceeded the plaintiffs’ recovery, and knowing the plaintiffs to be insolvent, thought it unnecessary to take any further steps in the case, taking it for granted, as he well might, that the plaintiffs would never attempt to collect their damages. Their subsequent proceedings upon the scire facias can hardly be considered as had in good faith: nothing was due to them, and they and their attorney knew it. Where a scire facias is prosecuted in good faith, and in a proper case, costs follow the recovery, no matter how small the amount: the statute is express upon this point, 2 R. S. 613, § 3; but this is not a case of that description. The defendant, therefore, has leave to enter a suggestion upon the original record filed in this cause, awarding to him his costs as of that time, which he will be allowed to set-off against the plaintiffs’ damages in the original action, and all the proceedings upon the scire facias are set aside. No costs of this motion to either party, one having been irregular and the other negligent.