Trustees of Schools v. Hihler

Per Curiam: This was a bill, filed by the school trustees, to set aside a deed of conveyance, by Hihler to Espenshield, of certain real estate, to avoid the payment of a judgment recovered by the trustees against Hihler and others. On a hearing in the court below, a decree was rendered dismissing the bill, and for costs against the trustees. This writ of error is prosecuted to reverse the decree for costs, and that part of the decree is assigned for error. Defendants in error admit that under the statute, and former decisions of this court, it was error to take a decree for costs against the trustees. But defendants in error, on the second day of the term, filed a remittitur of all costs named in the decree'. This, under section 82 of the Practice act, was sufficient to remove the error complained of by plaintiff in error. The error being thus obviated, the decree of the court below must be affirmed; but, inasmuch as defendants in error took an erroneous decree in the court below, and as the decree must have been reversed had the remittitur not been entered, defendants in error'will be required to pay the costs of this court. Defendants in error refer us to a receipt for all costs in the court below, paid by them and filed in this court. If there be such a receipt we can not regard it. If relied on as operating as a release of errors, counsel should know that, under the well established practice, it should have been pleaded. Releases, and papers operating as such, to be regarded by the court, must be brought to its attention by a regular plea. This is a court of record, and as such, matters of this character must be relied on according to the practice in such tribunals. Decree affirmed.