107 Tenn. 544 | Tenn. | 1901
This is an action commenced before a Justice of the Peace upon a judgment theretofore rendered by another Justice of the Peace. It was
It is said the second judgment was unnecessary and vexatious ; that execution could have issued' on the original judgment, and it would have been as efficacious as if issued on the new one. This may be so, but a plaintiff in an unsatisfied judgment has the right to obtain a new judgment upon it whenever he sees proper, unless perhaps he might be required to await the stay of execution, when stay had been given, or the defendant might bring suit to enjoin judgments repeated so often as to be vexatious. If the defendant desires to escape this
It,.is proper practice that the costs taxed upon the original judgment, if unpaid, should be retaxed in the second judgment without interest, as costs bear no interest.
The fact that these costs go to parties other than the plaintiff can make no difference. The costs of the original judgment do not go to the plaintiff in that judgment, and yet they are, recovered in his name. The legal interest in the costs is in the plaintiff, and in his name and through him must they be collected, and he is liable to the parties entitled as for money paid and received to their use. Gatewood v. Palmer, 10 Hum., 469. The costs of the second judgment should be taxed to the losing defendant. This is not a matter in the discretion of the Court in such case, but is fixed by the statute. Shann., §4938. This section is as follows: ‘‘ The successful party in all civil actions is entitled to full costs, unless otherwise directed by law, for which judgment shall be rendered.”
The judgment of the Court below is reversed and judgment will be entered here for the plaintiff