Herrick v. Marotte

VaNderhuroh, J.* The files and papers in this case appear to have been left in a loose and confused state. The judgment-roll was imperfect, and only a part of the record which was used on the motion to set aside the judgments was embraced in the original return made to this court upon this appeal. The additional return which was allowed in this case was therefore proper, and we think, upon the showing made by the respondent upon appellant’s motion to [160] strike it out, that such motion should be denied, and the additional return be permitted to stand. Judgment of dismissal was entered upon the direction of the referee in the action, and for costs against the plaintiff, which were taxed without notice. It appears from the record that two judgments were in form entered herein, — one in favor of defendant Marotte severally, and one in favor of defendants Marotte and Yasaly, jointly, each with costs. The action was brought to quiet the title of different lots of land, in which a large number of defendants were alleged to claim some adverse estate or interest, .which interest, it seems, however, was separate and distinct in the several lots or parcels. Defendant Marotte answered separately, setting up title to one of the lots, and also answered jointly with defendant Yasaly. The plaintiff moved to set aside one of these judgments for irregularity, inter alia, on the ground that but one judgment should have been entered. The court denied the motion to set aside the judgments entirely, but vacated and set aside the taxation and allowance of costs therein in all of the judgments, but with leave to the defendants to retax their costs upon notice. From so much of the order as denies plaintiff’s application to set aside the several judgment against defendant Marotte, and as allows a retaxation of costs, he appeals to this court. The judgment in favor of defendants Marotte and Vasaly is entered upon their joint answer, (as it appears from the record,) which, it may be fairly presumed, concerns other property and interests, and raises a different issue from that raised by the separate answer of Marotte, the same attorneys appearing for both defendants in each answer. It is clear, we think, that one judgment of dismissal would be sufficient for the common relief of all the defendants, unless they are entitled to separate bills of costs. But apart from the consideration of the question of costs, it is not a matter affecting any substantial right whether the judgment of dismissal is a common judgment or in severalty in such an action. The action is ended in either case, save as to the adjudication upon the question of costs, and the plaintiff is not aggrieved by the manner in which the formal entry of judgment was made. The separate judgment in Marotte’s favor can harm no one until costs are allowed and included in it. We are not, [161] therefore, called on to disturb the order of the court refusing to set aside the judgments. We cannot consider the question of costs on this appeal. The decision of the judge allowing a retaxation is not appealable. What is said in the case of Herrick v. Butler, ante, p. 156, on this and other questions raised on this appeal, apply equally to the facts of this case. Order affirmed. Footnotes [*] Ofilfillan, C. J., because of illness, took no part in this case.