Citation Numbers: 2 Hill & Den. 391
Judges: Bronson
Filed Date: 1/15/1842
Status: Precedential
Modified Date: 1/12/2023
By the Court,
Where an issue to the country is joined upon the assignment of error in fact, and a verdict is found for the plaintiff in error, he cannot enter an order and perfect a judgment of reversal as a matter of course. There should be a special application to the court for judgment on the coming in of the postea, or, as the practice now is, on showing the pleadings and verdict. (Rose v. Smith, 4 Cowen, 17. Brown v. Lerow, 2 id. 525. Ogburn v. Berrington, 1 Sir. 127. 2 Tidd, 1233, Phila. ed. 1828.) There should, also, be a special motion for judgment, where an issue in law upon the assignment of error in fact is determined in favor of the plaintiff in error. The same reason exists in both cases for asking the direction of the court.
Where the judgment of the court below is found to be erroneous, we direct what particular judgment shall be entered on the writ of error. It is in some cases simply a judgment of reversal: in other cases we go further, and render such judgment as the court below should have rendered. Sometimes a venire de nova, either in this court or the court below, is ordered; and sometimes restitution is awarded. When a new trial is ordered, the costs of the writ of error are in the discretion of the court; and on a reversal, the cause is sometimes retained in this court, and
At an early day all orders were made by the court, and entered in its minutes. But in April term, 1796, a general regulation was adopted, by which common rules, or such as the party was entitled to as of course,„ and without showing special cause, were allowed to be entered with the clerk in a book to be provided for that purpose—since called the common-rulebook—and the entry was allowed to be made in vacation as well as in term time. But the regulation did not extend to rules in real actions, nor to rules in any other action or proceeding where the party was not entitled to the order as of course, and without showing special cause. Such orders must still be taken on special motion, and be entered in the minutes of the court. (See 1st rule of April term., 1796, and the present rule, No. 64, on the same subject.) An order to reverse a. judgment, unless it be where the defendant is in default for-not joining in error, does not belong to the class of common
The plaintiff in error is not entitled to costs in the court below, unless, in addition to the reversal, a judgment is rendered in his favor. In other words, when the court below should have given judgment in his favor, but gave it to the other party, then on a writ of error the judgment will not only be reversed, but the proper judgment will be rendered; and costs follow as a matter of course. In Gildart v. Gladstone, (12 East, 668,) the common pleas gave judgment for the plaintiff on a special verdict. That judgment was reversed in the K. B. an"d judgment was rendered for the defendant on the special verdict, with costs in the court below. The K. B. gave such judgment as the court below should have given, and that carried costs. So, if an erroneous judgment be given against a defendant on demurrer, it will not only be reversed, but judgment will be rendered for the defendant on the demurrer, and costs in the court below will follow of course. I speak of a case where the judgment rendered is final. If liberty be given to amend, or if in any other form the original action is still to go on, there the costs of the court below must, I think, depend on the final issue of the cause.
In this case, there is nothing but a simple reversal, without any further judgment in favor of the plaintiffs in error. They were entitled to nothing more; and I see no principle upon which they can be allowed the costs in the court below. There must be a re-taxation, restricted to such costs as have accrued on the writ of error.
It remains to be considered, whether some order should not be made beyond a reversal of the judgment. We have seen very often of late years that the privilege of infancy- is most grievously abused. It is quite evident in this case that the plaintiff, Gosling, or some one else in his name, has made use of his privilege as a minor, and the forms of law, to practice a gross imposition upon the defendant. He has taken property out of the defendant’s hands, to which, so far as we can judge from the result, he
On the whole, I do not see that we can do any thing to relieve the defendant from the effect of a simple reversal of" the judgment. He may, perhaps, bring trover or replevin to recover the property which has been improperly taken out of his hands ;
Although the judgment was irregularly entered, yet as it is such an one as we should have been obliged to order on motion for that purpose, it may be allowed, to stand on terms. The plaintiffs must pay the costs of this motion, which we allow at twenty dollars—the highest sum mentioned in the rule relating to costs on special motion; and there must be a re-taxation of costs on the writ of error, excluding all costs in the court below. The difference between the amount which shall be allowed on such re-taxation and the amount mentioned in the judgment, with the addition of $20 for the costs of this motion, must be allowed to the defendant towards the satisfaction of the judgment.
Ordered accordingly.
See Merritt v. Lumbert, (8 Greenl. Rep. 128 ;) Webber’s ex’rs v. Underhill, (19 Wend. 447, 455.)