103 Ala. 318 | Ala. | 1893
T. H. Brown instituted proceedings to contest the election óf W. J. Hilliard to the office of probate judge. In compliance with the statute, he gave
It is further contended, that the parties entitled to the cost should sue in their own names. Doubtless an action could be maintained in his' name by any witness attending, or officer performing the service, against the party, in whose behalf the witness attended or for whom such service was performed, and such parties might sue T. H. Brown to recover such cost, but neither witnesses nor officers in their own names could maintain separate actions on the undertaking against Brown and his sureties to recover these costs. Unless authorized by statute the cause of action given by the undertaking of defendant and his sureties can not be split up into as many actions as there are persons interested in, and secured by its provisions. — Smith v. Mutual Loan & Trust Co., 102 Ala. 282. . One suit of recovery will be a bar to any other suit. An action is maintainable oñ a judgment to recover cost. — 4 Amer. & Eng. Encyc. of Law,’ p. 320. Costs in civil cases are awarded in favor of the successful party, (Code , § 2837),'and execution runs in his name, and not in the napie of the parties to whom the costs are payable.
It is further contended by appellee, that as the • trial court had no jurisdiction of the subject matter, it could not render a judgment awarding cost. There are some cases which recognize the rule as thus asserted. — Burk v. Jackson, 22 Ohio St. 268. We are of opinion the sounder rule, and that which is supported by the great weight of authority is, that the court must decide whether it has jurisdiction or not, and the decision of that question, is a judicial act, — an exercise of jurisdiction, — and that costs are a proper and necessary incident .of such a judgment. — King v. Poole, 36 Barb. Sup. Ct. Rep. 242; Jordan v. Dennis, 7 Metcalf 590; Hawes on Jurisdiction of Courts, § 19 and note ; 1 Freeman on Judgments, § 120.
By our statuteshosts are awarded to the successful party. Code, supra. The fact that final judgment, quashing the proceeding was pronounced in this court, instead of a mandate to the trial judge, to render such judgment, in no manner affects the liability of the unsuccessful. party. The judgment rendered here was the judgment'
Reversed and remanded.