Gardner v. Walker

Welles, Justice. If the action had been tried before .the death of the defendant Colt, and a verdict had been found against him, and the defendant Walker had been acquitted, I think it clear that the latter would have been entitled ,to recover his full bill of costs against the plaintiff. Upon the death of Colt the action survived against the defendant Walker, and it would have been regular for the plaintiff to proceed against Walker as surviving defendant, treating the action as having abated as against the defendant Colt. Whether an order of the court for permission so to proceed, would have been required, it is not now necessary to decide. And I incline to think the plaintiff would be entitled to an order that the cause be continued against the representatives of Colt, and also against the defendant Walker separately—thus separating the action from the time of the death of Colt, and making two distinct actions after that time, or at least from the. time of the order for reviving. This, I admit, would be unusual, but I can see no objection to it in theory, and cases are likely to arise rendering such a course necessary for the protection of the rights of the plaintiff. Clearly, the action could not be permitted to proceed against both the surviving defendants [408] and the representatives of the deceased defendant jointly as one action. The incongruity of such a course in an action purely legal in its character and object, is too apparent to require argument. The papers show that the order obtained at special term, allowing the action thus to proceed, was granted without opposition, and upon notice, and was doubtless allowed without any consideration by the court, at the peril of the party asking for it. However that may have been, when the cause caine on for trial there was no regular mode of proceeding under the circumstances, but by compelling the plaintiif to elect. Whether it was proper for the judge at the same time to have dismissed the complaint as against Walker, the survivor of the original defendants, it now seems to me somewhat questionable. Be that as it may, the order was valid until reversed, and Walker, in his individual character, is out of court. He is, in my opinion, entitled to recover the same costs as if he had been acquitted upon trial. The objection that no judgment could be entered up in his favor, while the issue with the other defendants remains undecided, is untenable. He has no longer any interest in the result, and his right to recover his costs is not contingent, but fixed and certain. And so of the plaintiff’s liability to pay them. I have looked into the details of the bill of costs, and do not perceive any legal objection to any of the items. The motion is therefore denied, but without costs.