Main v. Main, 48 Conn. 301

Main v. Main

48 Conn. 301 | Conn. | 1880

Granger, J.

This is a suit against a surety upon a recognizance for costs, and by statute (Gen. Statutes, p. 495, sec. 11,) such a suit must be brought “within one year after final judgment has been rendered in the suit in which such recognizance was given.” The question made in the case is,, whether judgment was rendered in the suit in which this: recognizance was given, on the second day of July, 1878, or •on the fourteenth day of July, 1879. If rendered on the latter date the suit was brought within one year from the rendering of the judgment; if rendered on the former date the suit was brought after the expiration of the year, and the plaintiff can not recover.

It appears by the finding that the suit in which the recognizance was given was withdrawn by the plaintiff in the suit on the twenty-ninth day of the April term of the Court of Common Pleas in which it was pending, which was the 2d day of July, 1878. The term closed July 8th; the case did not appear on the docket after that date,‘no continuance was had, and the case was not brought forward. By statute (Gen. Statutes, p. 418, sec. 13,) a plaintiff has a right to withdraw his action at any time before the jury have rendered their verdict; in which case he must pay costs to the defendant, if the latter shall appear. A non-suit ends the case, and it can not be re-instated without notice to the other party or consent of both parties. A judgment of non-suit in such a case results from operation of law rather than from any action of the court. The court has no further jurisdiction over the parties or the action except for the purpose of taxing the costs, which is a mere incident, and may be done at any time at the convenience of the court. It is not in any proper sense a rendering of judgment, but a mere *306fixing of the amount of costs, which are to be computed by rules established by statute, the act being largely clerical in its nature. Costs do not run after a withdrawal in term time, nor after notice to the defendant where the withdrawal is made, as it now may be, in vacation. If a suit is withdrawn in term time there is nothing in the statute making it necessary for the plaintiff to give the defendant notice; the presumption being that the defendant, having appeared in the case and therefore being in court, will take notice for himself of whatever takes place in court affecting his rights.

Upon these well settled principles it is clear that the judgment in this case must be regarded as rendered at the time of the withdrawal of the suit on the 2d day of July, 1878, and not on the 14th of July, 1879, when the costs were finally taxed.

But there is a ground which, it is claimed, and we think (Correctly, is fatal to all right of the defendant in the original •suit to costs. The defendant did not enter for costs during •the term at which the non-suit was entered, which was •essential to his right to have a judgment for costs. Richards v. Way, Kirby, 269; Bishop v. Pardee, 35 Conn., 4.

There is error in the judgment, and it is reversed.

Jn this opinion the other judges concurred.