Pierce v. Goodrich , 47 Me. 173 ( 1859 )

The opinion of the Court was drawn up by

Appleton, J.

The plaintiff having obtained judgment against the defendants, Goodrich & others, they, on the 23d of July, 1855, sued out a writ of error, and gave the bond prescribed by R. S., 1841, c. 143, “with condition that the plaintiff shall prosecute his suit to effect, and shall pay and satisfy such judgment as shall be rendered thereon.”

The writ of error was duly entered and continued till the December term, 1856, when the former judgment was affirmed, and, by agreement, no costs were to be allowed to either party. The record of the judgment in error is in the usual form.

Judgment having thus been rendered, the defendants were bound by the condition of their bond “ to pay and satisfy” the judgment rendered in error. Having failed to do this, it is difficult to perceive why this action should not be maintained against them.

• It is objected, that the record of the original judgment, sought to be reversed, has not been completed, and that therefore the action must fail. But the case finds that the docket of the Court contains entries of all the proceedings during the progress of the suit, till final judgment thereon, and affords all the data required to complete the record. The clerk’s docket is the record of the Court until the record is fully extended. Read v. Sutton, 2 Cush., 115. But the bond was to pay the judgment rendered in error, and that, the defendant not having done, his bond is forfeited.

It would seem, when the original judgment was affirmed, that a question as to the taxation of costs thereon having arisen, it was agreed to submit the correctness of that taxation to any Judge, and that the amount disallowed, if any, should be indorsed. This was for the benefit of the defendants. It was for them to procure the revision of the costs. The very language of this agreement, so far as it appears from the report, for the original is not made a part of the case, most clearly indicates that no ■ delay was to be had for that cause.

The agreement, that there should be no costs in the writ of error, was for the benefit of the defendants, and of which they cannot take advantage. Defendants defaulted.

Tenney, C. J., and Rice, Cutting, May, and Goodenow, JJ., concurred.