McCormack v. Malone

WALKEN, P. J. It is apparent from the record that the appellant, who was the claimant below, in seeking a retaxation of the costs upon the ground that they had been taxed improperly against the winning party to the suit, instead of against the losing party, acted on a misapprehension of the judgment. The suit which was removed into the city • court by the writ of certiorari was the claim suit instituted by the appellant. The judgment of that court, after reciting the claimant’s failure to appear and prosecute his appeal to effect, and that no cause for such failure was made known to the court, adjudged “that this suit be dismissed for want of prosecution, and that the plaintiff go hence ■and recover judgment against the claimant for the costs in this behalf expended,” etc. This was a dismissal, not of the original suit brought by the -plaintiff against O. S. McCormack, but of the claim suit instituted by the appellant, J. V. McCormack. The judgment entry does not import a dismissal of her suit by the original plaintiff. The original suit was not removed into the city court by the writ of certiorari. Only the claim suit was before that court, and it was that suit which was dismissed for want of prosecution. Because of the claimant’s failure to prosecute his appeal, in consequence whereof the claim suit was dismissed, that ancillary suit, in the court to which it was removed by the writ of certiorari, never i’eached the stage at which an issue had to be made up between the plaintiff in the writ and the claimant, as directed by section 6040 of the Code. It was put out of court before the time arrived for making up that issue, leaving the judgment of the justice of the peace unaffected by the abortive certiorari proceeding. Such an issue is not required to be made up in a claim suit after it has been dismissed in consequence of the claimant’s failure 625 to appear and. prosecute his appeal. The result of a dismissal of the claim suit for want of prosecution is to make the claimant, not the original plaintiff, the loser in that suit. The costs were properly taxed against the party who lost the claim suit, as the claimant did by the dissmissal of his suit for want of prosecution. Affirmed.