Brasseur v. Her Husband

Porter, J. delivered the opinion of the court. In this action the husband of the plaintiff, and other persons wj10 recovered a judgment against him, were made de- . . . , . fendants, and the suit was instituted and prosecuted with a twofold object, one was to correct certain errors in a judgment which the plaintiff had obtained against her husband, and the other was to prevent the codefendants, who had issued execution against her, from enforcing that execution on property which the petitioner alleged had been set apart and delivered to her, in virtue of the judgment of separation. The’ court below rendered a judgment, on the merits of which neither party complains, but the plaintiffs and appellants aver, there is error in it as relates to the costs. The court considering the plaintiffs in execution against the husband, to have been led into error by his conduct, decreed that he should pay all the costs. In this we think it erred. As between them and him the equity of such a direction may be admitted, but as between the plaintiff and the other parties, it is by no means so obvious. It may be true; indeed there is evidence on record of the fact, that the husband is insolvent; and the consequence of giving judgment against him for the whole costs, will be, that if he should be unable to pay them, the burthen of them will fall on the plaintiff, She has a right to recover her costs from those against whom she obtained judgment. The language of the Code of Practice is express on this point, and if any case would authorize an exception to the rule, we do not think this case to be such a one. — Code of Practice, art. 549. It is therefore ordered, adjudged, and decreed, that the judgment of the district court be annulled, avoided, and reversed: and, proceeding to give such judgment here, as in our opinion should have been given below, it is ordered, adjudged, and decreed, that the act of sale mentioned in the pleadings, from the defendant, Franqois Richard, to the plaintiff, be confirmed; that she ’take the property therein [593] mentioned, in full satisfaction of the amount stated to be due in the said act of sale; that she also recover from the defendant, her husband, the sum of thirty-nine dollars and seventy-three cents, with legal interest thereon, at the rate of five per centum per annum, from the day of the signing the judgment in the district court, until paid. And it is further ordered, that the injunction sued out in this case be dissolved, except so far as regards any of the property mentioned and conveyed in the said act of sale, and as to that, it be perpetuated. And this court, proceeding to determine the liability of the parties as to the payment of the costs of the suit, order and decree that the defendant, Francois Richard, pay so much of the costs as have accrued in the controversy between him and the plaintiff for correcting the errors complained of; and the defendants in the injunction pay all the cost thereof: the costs of this appeal to be paid by the ap-pellees. But where there are two sets of defendants or parties having distinct interests, as far as the judgment operates in each distinct interest or party, each one must pay his proper proportion of the costs accruing in his controversy with the plaintiff