Montgomery v. Montgomery , 20 Ala. 350 ( 1852 )

D AEG AN, C. J.

Jane Montgomery, by her next friend, sued out a writ of error against Eobert B. Montgomery, re-returnable to tbis court, to reverse a decree rendered by the Court of Chancery of Lowndes. The decree was reversed, and she was adjudged to recover her cost, accruing in this court. Upon this judgment for cost, an execution was issued against Robert B. Montgomery, the defendant in error, which was returned by the sheriff, “ no property found.” After this return, an execution was issued against the plaintiff in error, under the statute in such cases provided, and the costs were paid by her next friend. After this payment, the plaintiff in error applied for and obtained an alias execution against Rob-bertB. Montgomery; and on a previous day of this term he moved to quash the execution, and to have the judgment for cost satisfied, on account of the payment so made by the plaintiff in error. The motion, not being resisted at the time, was granted, and the plaintiff now moves the court to set aside the judgment quashing the execution, and to discharge the motion previously made.

It is scarcely necessary to inquire, how costs were recoverable, if at all, at common law. They are expressly given by our statute to the successful party, and are taxed by the clerk, who issues the execution for their collection; and when the execution is returned, “no property,” then an execution is directed to be issued against the plaintiff in the original execution, for all the cost created by him in obtaining the judgment. Clay’s Dig. 316. The plaintiff in the execution, therefore, becomes immediately liable for all the cost created by him, upon a return of his execution against the defendant, “no property;” and execution may go against him to enforce this liability. Being then liable, his payment only extinguishes this liability, but does not in any manner affect his rights against the defendant. They remain the same, and an alias execution may be issued to enforce them.

"We all concur in setting aside the judgment heretofore rendered, and in discharging the motion to quash the execution issued in favor of the plaintiff in error against the defendant.