Mills v. Sanderson

Hughes, J., (after stating the facts.) There is evidence to sustain the finding of the court that the bond for costs was delivered to the clerk on Saturday, the 15th of September, 1894, and by him filed on Monday, the 17th of September, 1894. Was the judgment rendered without notice? When the sureties signed and delivered the bond, they were in court, and were bound to take notice of any proceedings in the case that affected them. Section 2704, Sandels & Hill’s Digest, provides that “if, upon the trial of any such suit as is mentionod in section 2702 [contests for offices named], judgment shall be rendered against the contestant, judgment shall be immediately rendered against him and his sureties in the bond for costs in favor of the contestee or defendant in the action, and the officers of the court, for the amount due them as costs in the case.” Act February 24, 1879, §§ 1, 2 and 4. The general statute is found in section 796, Sand. & H. Dig., and provides that “in all cases where there is security for costs * * * in which the plaintiff shall be adjudged to pay the'costs, judgment may be rendered against such security * * * on motion of the party entitled to such costs, notice of such motion having first been given to such security,” etc. Rev. Stat. chap. 34. There is no conflict between the two sections. One applies in actions at law generally, while the other applies in contested election cases, and is a special statute enacted to be applied specially in reference to contested election eases. The general act applies in all actions at law, whenever there is not a special statute. Where there is a special act made to appl; in particular cases, it only applies, and not the general act Endlich, Interp. of Statutes, § 223 et seq. The judgment of the court in sustaining the demurrer to the second paragraph of the petition is correct, and the findings of the court and judgment upon the facts is sustained bj the evidence. The judgment is in all things affirmed.