Sholes v. Stead ( 1866 )

Opinion by

Beatty, J.,

Brosnan, J., concurring.

This is a judgment for six hundred and ninety-nine dollars and forty-six cents, besides one hundred and nine dollars and ninety-five cents costs, made payable in gold coin.

There are two assignments of error: one, that the judgment is for gold coin; the other, that the judgment, so far as it relates to costs, is erroneous for the reason that no cost bill was filed within two days after the decision, as required by law.

This Court has repeatedly held that a judgment for gold coin cannot be sustained.

In regard to the second point, these are the facts:

The cause was tried before the Judge on the eighth day of December, 1865. At the conclusion of the argument, the Judge made an order reciting the submission, argument, etc., and concluding as follows:

“ Judgment ordered to be entered in accordance. with the findings of Court.”

On the following day, (the 9th) findings which were in favor of nlaintiff, were filed.

On the eleventh, the cost bill was filed. The statute says: “ The party in whose favor the judgment is rendered, and who claims his costs, shall deliver to the Clerk of the Court, within two days after the verdict or decision of the Court, a memorandum of the items of his costs,” etc., etc. The only question is, what is the date of the “ decision of the Court ?” Was it the eighth, when the first order was made, or the ninth, when the finding of facts was filed ? We think, most decidedly, when the finding of facts was filed. The first order does not even intimate in whose favor the judgment would finally be. There might have been a finding of facts requiring the judgment to be for defendant. It is quite possible the Judge may have stated how the findings would be, but the record shows nothing of the kind. In the absence of record evidence, this Court cannot say the case was decided before the ninth.

The Court below will so modify the judgment as to strike out all that part thereof which relates to gold coin. In other respects the judgment is affirmed. The appellants will recover their costs in this Court.