Hinman v. Booth

By the Court, Bronson, J. The Hinmans are entitled to judgment against the defendant on the verdict in their favor, and will recover costs as a matter of course. Their right has been contested throughout, and there is no practical rule, consistent with the statute, but to allow them such costs as they would have recovered if they had sued alone, without joining with the two plaintiffs who failed in the action. All charges which relate exclusively to the claim of the two plaintiffs who have been defeated must be rejected. If, for example, the declaration contained separate counts upon their title, charges for those counts, whether in the declaration, circuit roll or judgment record, must not be taxed against the defendant; and if witnesses attended or other ■expenses were incurred with exclusive reference to their claim, those expenses must be rejected. In other respects the plaintiffs who succeeded are entitled to a full bill of costs against the defendant. The defendant is entitled to judgment against the plaintiffs, Catlin and Beardslee, in pursuance of the verdict, with costs. Maybury v. Evans, 19 Wendell, 625. The costs should, I think, be taxed on the same principle, substantially, as that already mentioned. The defendant is entitled to such costs as he would have recovered if the two plaintiffs who failed had sued alone. If any expenses were incurred in defending against the Hinmans exclusively, those expenses should not be allowed. In other respects the defendant is entitled to a full bill. We are not at liberty to say he shall recover less. 2 R. S. 615, § 16. Canfield v. Gaylord, 12 Wendell, 236. There will, however, be but one judgment record, and if that is made up by the plaintiffs who prevailed, the defendant will not be entitled to charge any thing on that account. Although the defendant failed in his motion for a new trial so far as the Hinmans are concerned, he prevailed in relation, to the [668] plaintiff Gatlin,and is consequently entitled to charge formating the case and the subsequent proceedings upon it. It was insisted, that as the verdict passed against the plaintiff Beardslee, at the circuit, and he proceeded no further with his claim, he should not be subjected to the costs of the motion for a new trial. But he must, I think, abide the fate of the plaintiff Gatlin. The defendant is not entitled to several judgments against Beardslee and Gatlin, but to one judgment against both, on which there will of course be but one taxation of costs. They both united in the assertion of claims to the property which proved not to be well founded, and they must settle between themselves the portion of the taxed bill which each ought to pay. There must be a retaxation upon the principles I have mentioned. Ordered accordingly.