2 La. 590 | La. | 1831
delivered the opinion of the court.
In this action the husband of the plaintiff, and other persons wj10 recovered a judgment against him, were made de- . . . , . fendants, and the suit was instituted and prosecuted with a twofold object, one was to correct certain errors in a judgment which the plaintiff had obtained against her husband, and the other was to prevent the codefendants, who had issued execution against her, from enforcing that execution on property which the petitioner alleged had been set apart and delivered to her, in virtue of the judgment of separation.
The’ court below rendered a judgment, on the merits of which neither party complains, but the plaintiffs and appellants aver, there is error in it as relates to the costs. The court considering the plaintiffs in execution against the husband, to have been led into error by his conduct, decreed that he should pay all the costs. In this we think it erred. As between them and him the equity of such a direction may be admitted, but as between the plaintiff and the other parties, it is by no means so obvious. It may be true; indeed there is evidence on record of the fact, that the husband is insolvent; and the consequence of giving judgment against him for the whole costs, will be, that if he should be unable to pay them, the burthen of them will fall on the plaintiff, She has a right to recover her costs from those against whom she obtained judgment.
The language of the Code of Practice is express on this point, and if any case would authorize an exception to the rule, we do not think this case to be such a one. — Code of Practice, art. 549.
It is therefore ordered, adjudged, and decreed, that the judgment of the district court be annulled, avoided, and reversed: and, proceeding to give such judgment here, as in our opinion should have been given below, it is ordered, adjudged, and decreed, that the act of sale mentioned in the pleadings, from the defendant, Franqois Richard, to the plaintiff, be confirmed; that she ’take the property therein