Sturges v. Allis & Lee

10 Wend. 354 | N.Y. Sup. Ct. | 1833

By the Court,

Savage, Ch. J.

The plaintiff'brings assumpsit to recover money collected from him under a judgment which has been reversed. That the action lies, has been expressly adjudged, 6 Cowen, 299.

The defendant contends that the plaintiff cannot recover until the determination of the cause in the court below, a ve= ñire de novo having been awarded. The defendants in error recovered in the court below their costs in that court and collected them. The judgment of reversal is, that the plaintiff shall he restored to what he has lost, and that the costs in this court abide the event. The plaintiff has lost the amount of the judgment in the court below, and to that, he is to be restored. But when is he to be restored to it 1 The record fixes no time. It is of course to be done immediately, if the plaintiff in error chooses. It is true that, should the defendants ultimately prevail, this same money will belong to them; but at present, the judgment by which they claim title to it having been reversed, they have no title and no right to retain the possession of it. The awarding a venire de novo merely directs the parties to proceed and try the cause in the court below; the cause is restored to the situation in which it was before the former trial, when the parties below had shewn no right to either damages or costs; of course none could be claimed in advance. The judgment of reversal having remanded the parties to this state of the cause, the costs which have been collected must be returned, before the parties will be in statu quo.

The next question is whether a cause of action was shewn against both defendants. If any cause of action at all has been shewn, it is joint and not several. The award of costs upon the record is in favor of both ; the execution is in favor of both, and the attorney on record who issued the execution, and the sheriff who collected the money, were the agents of both. If the costs accrued in unequal portions, the fact does not appear on the record, and if it did, would not create in this case a separate liability, so long as the judgment for costs is joint upon the record. The plaintiff is entitled to judgment.

New trial denied.