Latham v. Bliss & Childs , 13 How. Pr. 416 ( 1856 )

By the court—Bosworth, Justice.

" The legal costs of the action,” which the defendants agreed to pay, means such costs as the plaintiff would have been entitled to recover, if a judgment had been entered in his favor at the time of the settlement without a trial. Section 304 is explicit—that if a maker and indorser of a promissory note are separately sued, the plaintiff shall recover but one bill of costs, and the disbursements in the other action.

There is nothing in the Code which favors the idea that, when they are sued together, the plaintiff may collect full costs of the action of each. He can have but one bill of costs.

Section 306 has no application to the case. That section vests in the court a discretionary power, when several persons, not united in interest, are made defendants, and answer separately, and the plaintiff recovers only against part of them, to award costs to such of the defendants as have judgment in their favor.

In this case the position of the plaintiff is the same as if he had obtained a verdict against all the defendants, and they had then tendered the amount of the verdict, and such sum as might be necessary to pay the costs up to that time. The. only difference is, that in the case supposed the plaintiff might have been entitled to a trial-fee.

We think it quite clear, that the plaintiff is entitled to but one bill of costs: that will include all the disbursements made in the action, which are allowed by law.

The cause having been settled before the December term commenced, there Avas no necessity for its being on the calendar of the December term. The fact, that the plaintiff did not inform his attorney of the settlement, may, perhaps, be a reason, why he should compensate his attorney for any services subsequently rendered, in ignorance of the settlement, in watching the calendar. But there would seem to he no more reason for charging these costs to the defendants than if the attorneys had been present at the settlement.

We think the order appealed from is right in all respects, and it must be affirmed.