22 W. Va. 95 | W. Va. | 1883
The only question involved in the record of this cause is, whether in a suit by a non-resident, when the court below
There having been really no change in the statute-law, as to the extent of the liability for costs of a security for costs in a suit, we may with safety resort to the oldest decisions in Virginia to ascertain the extent of this liability. The oldest case directly deciding the extent of the liability under our statute-law of a security for costs given, when the plaintiff is a nonresident, is a decision by Chancellor Taylor of the Richmond district, rendered in 1810, and reported in 4 TI. & M. p. 484. The case is a short one, and as it is directly in point I will
Of course if the bond for security of costs had been given, as in the case before us, before Key, who stands in the situation of Bailey in this case, appealed, Chancellor Taylor would have held, that the security in the bond was only liable for the costs in the court below, and not for the costs incurred by the defendant in the Appellate Court, and for which he had, as in the ease before us, a decree against the plaintiff below. If Chancellor Taylor was right in his construction of our statute-law it must follow, that Silas P. Bailey has not a right on the undertaking for costs to recover of the securities the two hundred and sixty-three dollars and sixty-five cents costs incurred by him in this Court, and for which he has a decree against the plaintiff; but he is only entitled to recover the. costs, which ho incurred in the circuit court of Taylor in the suit, in which this undertaking was given, and this I understand it is admitted that he has received. I do not find any other decisions in Virginia or in this State directly deciding the question involved in this case. This I presume results from this old decision having like many of Chancellor Taylor’s decisions been regarded by the profession as settling the law, and I presume it has been ever since acquiesced in by the bar so that the question has never been brought directly before the court of appeals of Virginia or of this State. Other decisions have been rendered by the court of appeals of Virginia, which as I understand them indicate, that had this point been brought before the court of appeals it- would have approved this decision of Chancellor Taylor. In Woodson v. Johns, 3 Munf. 230, decided in 1812, the court of ap
So in the case before us the obvious reason, why the defendant in the chancery suit, Bailey, cannot recover his costs in the Appellate Court is, that none such could have been contemplated by the undertaking for costs executed before the circuit court, inasmuch as these costs of Bailey would have been provided for by the bond, which was given by the plaintiff, McCormick, when he obtained an appeal had he been the appellant. And it seems to me obvious, that the responsibility for the appellate costs of Bailey, on the part of the obligors in this undertaking for costs, can not depend upon, who may happen to be the appellant. If they were bound for these appellate costs they would be bound absolutely, and if not so bound, it must be that the only costs awarded to said Bailey in said suit, which they undertook to
“ The case of Woodson v. Johns was a suit on a bond dated in 1791 before the passage of the act allowing damages upon the dissolution of an injunction, and is consequently no authority upon the question of damages. But by the law as it then stood, the party obtaining the injunction was to give bond with conditions, among other things, to pay all such costs as should be awarded against him in case the injunction should be dissolved. Revision of 1792 page 95 § 56. The breach set out alleged, that the injunction was dissolved and’ costs were awarded. It appeared, that the injunction had been dissolved, the bill dismissed, and that the decree had been affirmed. The court of appeals decided, that the security in the injunction-bond is not liable for costs and damages, which may accrue on an appeal to a superior court.” The judge then proceeds to show, that this decision with reference to the obligors in an injunction-bond not being liable
The counsel for the plaintiff has referred to no authorities in this State or elsewhere, in which decisions have been rendered in opposition to these two old Virginia eases, nor have they so far-as I know been disapproved in any case in Virginia or in this State; but the counsel for the plaintiff in error insists, that the terms of the undertaking were “.to pay all costs, which may be awarded Silas P. Bailey in said suit.” As the costs claimed were awarded to Silas P. Bailey on an appeal from a decree in this suit, they were awarded in this suit, as the proceedings in this Court and in the court below were one and the same suit. ITe refers to no authorities to show, that an appeal or writ of error is regarded in all respects as a mere continuance of the original suit. I can well understand, as it is a continuance of the same controversy, that it might be held for some purpose as a continuance of the same suit.
There is one case in the Virginia reports decided by two out of three judges, and which is therefore not authority, in which from the language used by one of the judges it would appear, that he regarded an appeal for some purposes as a continuance of the original suit. In McClung v. Beirne, 10 Leigh 394, it ivas decided, “that the real estate aliened by the
But I do not propose to express any opinion, as to whether Judge Stanard was right in dissenting from these views of Judge Tucker, or whether Judge Parker was right in reaching tire same conclusion, which Judge Tucker did, whether by the same or some other train of reasoning; for it seems to me it may be safely admitted, that appellate proceedings may for some purposes be regarded a continuance of the original suit, while for other purposes it should be regarded as a new action; and it is generally regarded as in its nature anew action, and not a continuance of the original suit. It is true, that what are perhaps most properly called appeals are a continuation of the original case, when the case is tried de
The very form, in which the judgment or decree of the appellate court is entered, on its face indicates, that it is not regarded as only a continuance of the original suit, but rather as a new action. Thus when a case is reversed two distinct decrees as it were are entered up by the appellate court; the first is a recovery by the appellant of his costs in the appellate court, and the second is such a decree on the merits of the case as the court, below ought to have entered. Now the first of these decrees or the first part of the decree entered by this Court is entered up in just the form, in which a decree would be entered in a new action, while the second is in the form, in which the decree should be entered in the original cause. It is therefore, not to me apparent, why as a matter of course tliis first part of the decree giving the appellant costs, and which is entered up in the form of a decree in a new action, should be considered as a decree in the original suit; on the contrary it seems to me, that ordinarily it could not be so regarded. An appeal or a writ of error is a new proceeding, commenced before a different court. If this new proceeding was for the purpose of carrying the judgment
The true view of appeals it seems to me was taken in the case of Kanouse v. Martin, 2 Sandf. 740, where Mason, J., in delivering the opinion of the court, says: “Although an appeal or writ of error in some aspects may not be deemed a new action, but only a proceeding in an action already existing, yet in other respects it is a new suit. ’When judgment is perfected in an inferior tribunal the suit properly speaking is at an end, and the subsequent proceedings in the same court are only for enforcing: the judgment. On an. appeal or writ of error new proceedings are commenced before a different tribunal not for the purpose of carrying that judgment into effect, but for the purpose of defeating or reversing it. The defendant, if he appeals, now becomes the plaintiff, and the costs under either law are entirely different from those provided in the courts below. The fee bill itself under the old law was framed on the idea, that a writ of error or an appeal was a new proceeding, since a retaining fee was allowed, and new and different rules of compensation fixed.”
These cases are sufficient to show, that it would be a very unsafe premise to assume, that an appeal or writ of error was in no case to be regarded as anything else than a simple continuance of the original suit, and that therefore necessarily one who was security for costs in the original suit was also bound
It seems to me however., that this matter has been determined long since by the Virginia cases, to which I have referred. I.have examined the authorities referred to by counsel in other States, and so far as those authorities go they'appear to concur with the views which I here express. Such is the construction apparently put upon the obligation, which rests upon a security for costs in the court below in Illinois and Tennessee. See Clark v. Quackenboss, 28 Ill. 112; Kennedy v. Jack, 1 Yerg. 82; Hawkins v. Thornton, 1 Yerg. 146; Carren v. Breed, 2 Cold. 465; Allison v. Stephens, 2 Head. 251. And in New York in the case of Judson v. Leach, 7 Cow. 152, the court decided, “where a statute declares that a party shall recover costs, it means the costs of the court where the action is pending, unless it be otherwise provided.” An Ohio statute provides, “that when a judgment is reversed the ]Dlaintiff in error shall recover his costs, and when a judgment is affirmed the defendant in error shall recover his costs.” In construing this statute in Gartright v. Sole, 16 Ohio 316 the court decided, “that the judgment of reversal or affirmance only embraces the costs made under the proceeding or writ of error.” The New York and Ohio cases while not' directly bearing on the subject under consideration show, that a statute directing the payment of cost by a party will be interpreted to mean costs in the court, in
My conclusion therefore is, that there was no error in the court below in dismissing the motion and notice of the plaintiff', and in rendering judgment against him for costs. The judgment therefore of the circuit court of Taylor county rendered on April 6, 1882, must be approved and affirmed; and the defendants in ei’ror must recover of the plaintiff in error their costs in this Court expended, and thirty dollars damages.
Judgment Aeeirmed.