Spann v. Cole

COLLIER, C. J. The assignment of error brings to our view the correctness of the judgment of the circuit court on the motion to quash. Whether the confession by the defendant that he was indebted to the plaintiff in the sum of five hundred dollars, leaving open for contestation the residue of the demand, authorized a judgment for costs, is an inquiry which cannot now be made. It is however worthy of consideration, whether, as the plaintiff must have been successful if the cause had progressed to a trial, without the intervening judgment, and consequently entitled to costs, the court would not, upon the judgment of non-suit, have given him the costs accruing up to the first judgment ? If [475] so, the defendant has but little ground of complaint in any form of proceeding. The judgment under which the fi. fa. issued is, that the plaintiff recover the costs. Here was an ample warrant for the clerk to issue an execution; and it was not competent on a motion to quash, to vacate or modify this judgment. If amendable by the court rendering it, a specific motion should be made for that purpose. If the clerk committed an error in taxing the costs, that error could be corrected on a motion to retax ; but furnishes no ground to quash the execution. We have but to add, that the judgment denying the defendant’s motion is affirmed.