48 Neb. 152 | Neb. | 1896
The court below rendered a judgment on the 24th day of September, 1892, against the defendants below, upon the pleadings, without any proofs or evidence, for the sum of $359.40. The only question for determination is whether the plaintiff was entitled upon the pleadings to judgment for the amount rendered. The action is upon a supersedeas bond executed by Emma L. Yan Etten, as principal, and the other defendants, as sureties, to stay the execution of a judgment obtained in the district court of Douglas county by Henry A. Kosters against said Van Etten during the pendency of proceedings in error instituted by her in this court for the purpose of reviewing said judgment.* The petition alleges the recovery of.a judgment by Kosters against Yan Etten, on February 11, 1889, in the sum of $286.30 and costs; the execution and delivery of the supersedeas bond attached to and made a part of the pleading; the prosecution of a petition in error by said Yan Etten to this court; the affirmance of the judgment, and subsequently the modification thereof by requiring the plaintiff, as a condition of affirmance, that he file a remittitur for the sum of $28 as of the date of the original judgment, which he accordingly did; the issuing and filing of the mandate of this court directing the district court to proceed with the enforcement of the original judgment to the extent of $258.30, with interest thereon from February 11, 1889, and the costs in the dis
It will be observed that the recovery in the case at bar is for the precise amount claimed in the petition, including the item of $35.73 for costs, and we take it that the judgment was thus rendered on the theory that the answer of the defendants presented no defense to plaintiff’s cause of action. In this We think the court below erred. The defendants in their answer deny the amount of costs which the petition alleges was recovered against Mrs. Yan Etten by the judgment superseded, and they also expressly aver that such costs did not exceed the sum of $20.93. There was no reply filed, and this averment as to costs in the answer must be taken as true. Upon this defense alone the judgment was excessive in the sum of $14.80. The answer pleaded as a set-off the amount of costs Mrs. Yan Etten recovered against the plaintiff in this court on the proceedings to review the original judgment. The answer alleges that such costs were taxed and specified in the mandate issued to the district court at the sum of $24, when in fact Mrs. Yan Etten was entitled to recover a much larger sum as taxable costs, to-wit, $59.05. The items of cost makings this sum are set out in the answer, and it is ¿verred that plaintiff is liable to Mrs. Yan Etten therefor, excepting the sum of $6, which belongs to the clerk of this court as his costs in the case. The unpaid costs which Mrs. Yan Etten recovered against the plaintiff, she is entitled to set off in this action. (Raymond v. Green, 12 Neb., 215.) There are some other averments in the answer, which need not be referred to, as they were insufficient to constitute a defense.
It is finally insisted that this judgment should be reversed, because it was rendered against all the defendants as principals, instead of against Mrs. Yan Etten as principal and the others as sureties, in accordance with section 511 of the Code of Civil Procedure, which pro-
For the errors indicated the judgment must be reversed and the cause remanded, with directions to the district court to render judgment for plaintiff below in accordance with this opinion.
Reversed.