Gilbert v. Earl

The opinion of the court was delivered by Barrett, J. It appears that justice Perley, in point of fact, considered and adjudicated the last two items of the plaintiff’s account for which he claims to recover in the present suit. It is true that this plaintiff did not present them as defendant in that suit. Yet, as they were found credited to him on this defendant’s book as plaintiff in that suit, in finding the balance between them in that suit, said two items were made the subject of inquiry and testimony by both parties in the trial before said justice. This plaintiff was therefore cognizant of the fact of such adjudication by said justice, and did not appeal therefrom. He must therefore be regarded as having acquiesced in the making of such adjudication, notwithstanding what he had said as to not submitting any matter of claim in his own favor to be tried in that case. This being so, of course that judgment is conclusive as to all matters upon which it was predicated. Where the record does not show specifically those matters, it is proper, and is ppm in on practice, to show them by evidence aliunde the record. Of course then that judgment would bar said two items as matters of claim in this suit, and would be proper as an offset to that item of the [13] plaintiff’s claim that was not embraced in that judgment. Authorities need not be cited upon these propositions. The subject of costs presents only a question of apportionment. All the items of plaintiff’s account were litigated before the auditor. On two of them he failed; on one he prevailed. Thus far then there was no ground for apportionment in his favor. He was not subjected to any delay by the offset not having been filed at an earlier day. He is just as well off as if it had been filed the first term the cause was entered in court. That offset defeated his recovery, and gave a balance for the defendant. It is not apparent that the county court committed any error in law-in disposing of the subject of costs. As it is presented in this case, it was properly a matter for the discretion of the court; and the exercise of it was not contrary to the statute referred to, and was consistent with what has been held by this court in the cases referred to. 27 Vt. 786 ; 35 Vt. 38. Judgment affirmed.